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CHAPTER XXIV.

THE OBJECT OF EVIDENCE.

The object of evidence is to find out the truth or falsity of the facts at issue.

It has been found by experience that this is best accomplished by the following general rules which are now binding as law :

(1) The evidence must be confined to the point at issue.

(2) Only the substance of the issue is necessary to be proved.

(3) The affirmative of the issue must be proved.

I. Evidence confined to Point at Issue. This rule has been adopted, both in civil and criminal cases, from motives of justice, and especially in criminal cases is there a necessity of its strict enforcement. The reason is that no person can be expected to answer unprepared, and at once, for every action of his life. Thus, under this rule, , on a trial of a soldier for mutiny it is not permitted to give evidence of facts, tending to prove another distinct offense, for the purpose of raising the inference that the prisoner had committed the offense in question ; still, in an indictment for stealing, for the purpose of showing the identity of the person, it is often important to show that other goods which have been upon an adjoining part of the premises were stolen on the same night and afterwards found in the possession of the prisoner.

It is not competent, even, for the prosecutor to give

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evidence of the prisoner's tendency to commit offenses of the kind of which he is charged.'

While this general rule seems plain, it is often difficult to apply it. Greenleaf says,—“ It is not necessary, however, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although alone, it might not justify a verdict in accordance with it. Nor is it necessary that its relevancy should appear at the time when it is offered; it being the usual course to receive, at any proper and convenient stage of the trial, in the discretion of the judge, any evidence which the counsel shows will be rendered material by other evidence, which he undertakes to produce. If it is not subsequently thus connected with the issue, it is to be laid out of the case.

The object of the rule is to exclude evidence of collateral facts which do not bear upon the issue, and which, if allowed, would tend to complicate the case.

Exceptions. To this rule there are certain seeming exceptions, although the law does not regard them as such :

(a) Guilty Knowledge. In many cases known to the articles of war, it is necessary to prove a guilty knowledge in the prisoner with regard to the fact at issue. For this purpose evidence may be given of circumstances not connected with, though in some measure relating to, the particular offense, in order to raise a presumption of a guilty knowledge in the prisoner at the time of the offense committed. On this ground evidence of other offenses of the same kind committed by a prisoner, though not charged in the indictment, is admissible against him.

Thus, in the case of an officer charged with false muster under the 14th Article of War, other false reports made

· Roscoe, p. 80. ? Greenleaf, Vol. I., S 51 a.

about the same time may be proved as showing guilty knowledge.

(b) Intent. It often happens in the military service that things, in themselves innocent, if done with a certain intent become criminal. Thus, absence without leave becomes desertion if there is an intent to remain away.

In these cases, where the intent has to be proved, evidence of collateral facts may be given if they tend to establish the intent of the prisoner in committing the act in issue. On a charge of desertion, for instance, it might be shown that the prisoner had sold his uniform and bought citizen's clothes shortly before leaving his command, or that he had shortly before drawn money from a bank, or other collateral facts tending to show his intent. So, on a charge of disrespect towards a commanding officer under the 20th Article of War, in sending a threatening letter, other letters, written before or after the one in question, may be read in evidence to show its meaning

Again, the declarations of the prisoner made at a former time are admissible when they tend to prove the intent of the party at the time of commission of offense. Thus, on an indictment for murder, evidence of former grudges and antecedent malices may be given to show . the prisoner's malice against the deceased.

(c) Character. Another exception to the rule is in the case of character. Courts-martial will always allow prisoners to produce evidence as to character; in fact, the members often advise a soldier to produce such evidence. The most proper person to call for this purpose, generally speaking, will be the prisoner's commanding officer, or, better still, the commander of his company, although any person may give such evidence.

1 Roscoe, p. 95.

Evidence of character should properly be given after the prisoner has finished his defense by testimony.

Before courts-martial, as in civil courts, evidence of the prisoner's general character is allowed. Phillips says,- – “ The inquiry as to general character ought manifestly to bear some analogy and reference to the charge against him. On a charge of stealing, it would be irrelevant and absurd to inquire into the prisoner's loyalty or humanity; on a charge of high treason it would be equally absurd to inquire into his honesty and punctuality in private dealings. Such evidence relates to the principles of moral conduct, which, however they might operate on other occasions, would not be likely to operate on that which alone is the subject of inquiry; it would not afford the least presumption that the prisoner might not have been tempted to commit the crime for which he is tried, and is, therefore, totally inapplicable to the point in question.” 1

Courts-martial do not so strictly adhere to this rule which requires the evidence to bear analogy to the charge in issue. A prisoner may be permitted to put in proof particular instances wherein his conduct may have been publicly approved by superior officers.?

General character, unconnected with the charge, may be received, and would perhaps be of advantage to the prisoner in cases where the punishment is discretionary. It might also influence the reviewing officer to mitigate or remit the sentence.

Value of Evidence as to Character. The exact value of evidence as to character cannot be laid down. It was formerly usual to treat the good character of the party accused as evidence to be taken into consideration only in doubtful cases; and jurors have generally been told that where the facts proved are such as to satisfy their minds of the guilt of the prisoner, character, however excellent, is no subject for their consideration. Before courts-martial, however, character should always be taken into consideration. In a clear case of guilt, where punishment is discretionary, it will be of value in determining the amount of punishment; ' and, in doubtful cases, it would often be of great value in determining whether a person of previous good character was guilty of a particular crime with which he was charged.

12 Phillips, 490. · VII. Opinions Attorney-General, Jan. 31, 1857.

Where intent is a principal ingredient in the charge, or where circumstantial proof only is adduced, evidence as to character, bearing on the charge, may be highly important.?

Bad Character. The judge-advocate is not allowed to produce evidence as to bad character, unless the prisoner has brought forward evidence of good character, and, even then, he should only be allowed to rebut the evidence adduced by the prisoner.

Only the Substance of the Issue need be Proved. It is a principle running through the whole criminal law that it is sufficient to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified. This is specially to be borne in mind by members of courts-martial. In its application a distinction is made between allegations of matter of substance, and allegations of matter of essential description. The former may be substantially proved; but the latter must be proved with a degree of strictness extending in some cases even to literal precision."

IMatter of Substance, This rule, simple enough in itself, is not so easy of application. What constitutes the substance of the issue, and what will justify the court in

Sec. G. C. M. O. 63, A. G. O., 1874, Opinion of J. A. G., May 18, 1875. * Simmons, p. 365, (2 Ed).

Greenleaf, Vol. 1, $ 56.

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