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Written Documents. Where a written document is set forth in the charges, the same distinction is now admitted in the proof, between allegations of matter of substance, and matter of description, as has just been explained. In matters not material to the merits of the case, a discrepancy between the document as set forth in the evidence, and the proof of the same, would not be material. Where the document, however, is the foundation of the charge—as for example, disrespect to a commanding officer in sending an abusive letter—the document should be strictly proved. The Affirmative of the Issue must be Proved. This is a rule of convenience, adopted, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable. This rule, like the others we have been discussing, is not always of easy application. Two things must be particularly borne in mind:— First. Not to confound negative averments, or allegations in the negative, with denials of an affirmative. Thus, a charge may state that a soldier did not appear at a certain roll call. This, although it resembles a negative, is, in reality, a positive averment, and the onus probandi would rest with the government. Second. That the affirmative and negative of the issue mean the affirmative and negative of the issue in substance, and not merely its affirmative and negative in form." Tests. Certain tests have been given for determining where the burden of proof lies; and, as the question may arise at any time during the trial, these tests should be remembered. (1st) It lies on the party who asserts the affirmative. Example. An officer or soldier is charged with shooting another. The burden of proof lies on the government to prove the act and attendant circumstances. Should the accused attempt to justify the act by setting up in defense the lawful order of a superior officer, the onus probandi would be shifted, and it would rest upon him to show such order. There are exceptions to this rule, as where the charge sets up negative matter, essential to the issue, which is peculiarly within the knowledge of the other party. Suppose an officer, for example, was charged under the 60th Article with wrongfully selling property belonging to the United States. Here, the officer, if he possessed authority for such sale, could immediately show it without the least inconvenience, while it might be extremely inconvenient to prove the lack of authority. This would be sufficient to shift the burden of proof. (2d) It lies on the party who would fail if no evidence at all, or no more evidence as the case may be, were given." (3d) It lies on the party who would fail if the particular allegation was struck out of the charge.” It rests with the court to decide upon whom the burden of proof lies; and it is a well settled rule of law that in a case where the testimony is so evenly balanced as not to admit of a conclusion being drawn from it, the verdict must be against the party upon whom the burden of proving the issue rests.”
* Best, Vol. I. p. 510.
THE instruments of evidence consist of witnesses and documents. Witnesses. A witness may be defined to be one who gives evidence under the obligations of an oath. The testimony given by witnesses is called parol evidence, as contradistinguished from that derived from documents, termed documentary. This division of the subject of evidence will be discussed under the following heads: (1) Competency of witnesses, (2) Credibility of witnesses. (3) Examination of witnesses.
COMPETENCY OF WITNESSES.
It is the general rule that all persons are competent to give evidence. To this, however, there are certain exceptions, which being proved, will render witnesses incompetent:
Incompetency how ascertained. Proof of such incompetency is necessary, as it is never presumed.
The ordinary mode of ascertaining whether a witness is competent is by examination on the voire dire before being sworn. Should he appear incompetent from his answers, he is rejected. If his answers are satisfactory, other witnesses may be called to show his incompetency. It sometimes happens that the incompetency of a witness is not discovered until after he has been sworn and his examination proceeded with a considerable way, or perhaps even brought to a close ; under such circumstances the court ought not to consider his evidence in coming to a finding. Should a ground of incompetency be discovered during the examination of a witness, his examination may be suspended, and he may be put on his voire dire to examine him as to his competency. Exceptions. The exceptions to the general rule that all persons may give evidence may be arranged under the following heads: 1. Want of religious principle. 2. Want of understanding. 3. Interest. 4. Infamy. Incompetency from Want of Religious Principle. One of the chief requirements of the law for securing truth in parol evidence is that it be given under the sanction of an oath. But from the nature of an oath, it would have no sanction if a party did not believe in the existence of a Divine Being, and a state of future rewards and punishments. Persons, therefore, who have not such belief are incompetent to testify. Nature of Religious Faith required. The particular religion of the party does not affect his competency, so long as he professes a religion that can bind his conscience. An infidel may be allowed to testify if he believes in a God who will punish. Some State courts have gone so far as to require only belief in the existence of a God, without ref. erence to a belief in a state of future rewards and punishments; but the true test seems to be belief of a God, and that he will reward and punish us according to our deserts.' It is not material whether the witness believes the punishment will be inflicted in this world or the next. How Proved. Defect of religious principle is never presumed, and the objection to a witness's competency on this ground should be made by the adverse party before he is sworn. Some difference of opinion has existed as to the manner of proving incompetency. The modern practice is not to question the witness himself, but to ask third persons to testify whether he has declared his belief in God, and in a state of future rewards and punishment.
Should the witness set up change of belief, this should be shown in the same way by his declarations to third parties.
Witnesses how Sworn. Witnesses should be sworn in the manner which they deem most binding on their conscience. The ordinary mode, as before pointed out, in court-martial proceedings is as follows: The witness, standing, holds up his bare right hand, and the judge-advocate repeats the prescribed oath. It should be administered in the exact language of the law, and by the person authorized to administer it. The court may ask the witness if he considers the form of administering the oath binding on his conscience, and the proper time for making this inquiry is before he is sworn. But if the witness without making any objection, takes the oath in the usual form, he may be afterwards asked whether he thinks the oath binding on his conscience; but it is unnecessary and irrelevant to ask him if he considers any other form of oath more binding, and, therefore, such question cannot be asked.
If witness, without objecting, is sworn in the usual mode, but, being of different faith, the oath was not in a form affecting his conscience, as if, being a Jew, he was sworn on the Gospels, he is still punishable for perjury, if he swears falsely."
* Greenleaf, Vol. I. § 371. Wharton's Crim. Trials, $2205.