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cusations which cannot be maintained, at the same time that the practice is highly inconvenient and injurious to the service, reflects much disgrace upon those who bring them forward.'
Commanding officers, before forwarding charges, should examine each case carefully as to this point, and also to determine whether the case should not properly be brought before one of the minor courts. To facilitate such examination, and as an aid to the judge-advocate who conducts the case, the names of all witnesses should be appended to the charges.
Alteration of Charges. Charges after having been preferred may be altered by the convening authority by additions, or erasures, or he may draw up entirely new charges upon the facts stated.
Much question has arisen as to the power of a courtmartial to amend material averments as to charges, or to reject and throw out altogether a charge or specification. The Judge-Advocate General holds that a court has this power, and founds his opinion upon the belief that the welfare of the service requires that the discretion of a military court should, so far as is consistent with strict law and fixed usage, be placed beyond the control of executive orders, and that its independence as a judicial body should, thus far, certainly be recognized and acknowledged. In favor of this view he cites Kennedy,' and De Hart. It would certainly seem, however, as if there were some cases in which courts could not exercise this power. Such a case happened in 1877. Charges had been technically corrected by the judge-advocate of the department before reference for trial. The judge-advocate of the court, in forwarding the proceedings, stated that he was
Simmons, p. 139 (2d Edition). ? Bureau of Military Justice, Oct. 3, 1869. 8 Pages 75 and 76, note, and p. 61. * Page 101.
ordered by the court to disregard such correction, and arraign the prisoner on the charges as originally drawn. In this, says the reviewing authority, the court wholly transcended its power, and the judge-advocate of the court should have disregarded such irregular exercise of authority
Courts-martial should exercise great care in amending material averments. When, however, there has been an error in the name, rank, or regiment, etc., of the accused, or in the date or place, the judge-advocate should make the proper corrections before arraignment, or the court might order such to be made.
The words and terms of the charge and specification cannot be changed after the arraignment of the prisoner.?
Delaying or Accumulating Charges. The practice of delaying charges, or allowing them to accumulate, is contrary to the principles of justice.
In Lieut. Gassaway's case, Attorney-General Wirt, quoting from Tytler, says: “Every charge should be preferred at the time when the fact or facts on which it turns are recent; or, if knowingly passed over (as was clearly the case here), ought not either in candor or justice to be in future brought into question." 3
By General Orders in 1813, from the Horse Guards, his Majesty declared that an officer has failed in his most essential duty to the service, by delaying to bring forward charges, and that permitting charges to lie dormant justifies the impression that the prosecutor is not actuated by public motives alone in their institution.
1 G. C. M. O. 13, Hdq’rs Dept. of the Missouri, March 24, 1877. 2 G. C. M. 0. 21, A. G. O., Feb. 17, 1877. 8 1. Opinions Att’y-Gen., Aug. 29, 1819. Tytler's Essay on Mil. Law, p. 165. * Simmons, p. 137 (2d Edition).
CHALLENGES AND PLEAS.
A Challenge, as understood in military law, is an exception to members of a court who are to pass judgment on a trial.
The right of such challenge is recognized by the 88th Article of War, which says, “ Members of a court-martial may be challenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time.”
Challenges at common law are divided into two general classes : peremptory, and those for cause stated. Peremptory challenges, i. e., those which assign no cause, are forbidden by the 88th article. Challenges for Cause are to the array, or to the poll
. Challenges to the Array are objections to the whole court on account of its illegality.
While the article says that the court “shall not receive a challenge to more than one member at a time,” this does not preclude a challenge to the whole array; for this is a challenge which goes to the very organization of the court, denying its legal existence as a court. Even if not made, where the ground of the challenge is true, the proceedings of such a court would be invalid.
Such challenges would not, as a rule, be made if courts-martial examined, before commencing proceedings, the order convening the court and the charges.
Challenges to the array would be proper for the following causes :
1st. That the officer convening the court had no authority to convene such a court.
2d. That the order does not state, in a court composed of less than thirteen members, that “no other officers than those named can be assembled without manifest injury to the service.”
3d. That the officer convening the court for the trial of a commissioned officer, or of an enlisted man in certain cases,' is the accuser or prosecutor.
4th. That the court is illegally constituted from having an incompetent member or members on it: for example, where a court for the trial of militia officers was composed in part of regular officers.
If any of these challenges are valid the accused cannot be called upon to plead.
Challenges to the Poll are usually divided into principal and challenges to the favor.
A Principal Challenge is one where the cause assigned carries with it prima facia evidence of suspicion.
The following examples, taken from actual practice, would come under this head, and, when made, should be allowed by the court.
1st. That a member of a court-martial preferred the charges and was a material witness.
2d. That a member was an inferior officer to the accused in the same regular regiment, in the line of promotion, and thus interested in his conviction.
3d. That a member or members of the court were members of a court of inquiry detailed to investigate the same charges. 4th. That in a new trial, upon the application of the
i See 73d Article of War,
accused, a member of the court appointed for the rehearing of the case sat as a member on a former trial.
While the fact, in each of these cases, would not invalidate the proceedings of a court, if no objection was made by the accused, yet, when objection was made on these grounds and overruled, it was held good ground for the disapproval of the proceedings and sentence.
Challenges to the Favor are those where an allegation of bias, prejudice, or malice is made. The dividing line between principal challenges and challenges to the favor is not very clearly marked, but this is of little importance in court-martial cases.
The following causes are cited as coming under this head :
1st. Previous expression of opinion.
2d. That the member had expressed hostile feelings and was prejudiced against the accused.
It sometimes happens that soldiers challenge their company commanders. This alone would not be sufficient cause for challenge, but, if on the ground of prejudice, and the prejudice could be proved, it would follow the same rule as to any other prejudiced member.
3d. That a member is a witness for the government.
Whether the court will excuse a member on such a challenge or not, must depend upon the circumstances of each case.
Where a material witness, he should be excused.
In each of these cases the challenge should be substantiated by evidence, unless the ground of objection is admitted by the member.
The member challenged is allowed to make a statement to the court, and this, together with the cause of challenge, is matter of record. Courts-martial sometimes
1 Opinions J. A. G., p. 31. G. 0. 118, A. G. O., March 24, 1864.