receive the statement of a challenged member without putting him on oath, and, if no objection is made by the accused, this is permissible; but the accused has the right to examine the member as to his competency upon the voire dire. He may also call witnesses to prove his incompetency, which the judge-advocate has the right to re-establish by cross-examination or by new witnesses. At a general court-martial held at Fort Leavenworth in 1853, the accused challenged a member for "bias, prejudice, and malice." The member then stated that "he had no prejudice or bias against the accused which could in the remotest degree interfere with his doing justice in the case, but, being challenged, he requested to be relieved from sitting on the court." This the court refused and overruled the challenge. The accused then requested that the member might be "put on his voire dire, in order that he might examine him as to the extent of any prejudice he might entertain;" which application the court refused. The ground of the decision is not expressed; whether it was that the court considered that the member ought not to be examined, and that the cause of challenge must be shown by other proof; or whether they thought the explanation already made by him sufficient. In commenting upon the case the Secretary of War said: "It was never doubted that a juror may be examined as to his bias or prejudice, or his opinions on the matter for trial, except that it was at one time held that opinions formed and expressed, as they may be proved by extrinsic evidence ought to be so proved. But that distinction is not now maintained in the courts of this country; and an accused is now allowed in all cases, for the better security of an impartial trial, to show the mind of the juror by examining him before the court; and the only exception is where the cause of challenge goes to the disgrace or discredit of the juror. In regard to the sufficiency of the explanation made by the member, the court ought to have considered that it was not a denial, but in some degree an admission of bias and prejudice, qualified by the member's opinion that it could not influence his judgment in the trial. This, however, was the matter of which the court was to judge, after inquiring into the nature and grounds of his feelings towards the accused. And as to the proof in this regard the law allows the accused the testimony of the member in the mode he demanded. The refusal of the court to allow the benefit of the necessary legal evidence to prove his cause of challenge would have set aside the trial, had the verdict been of conviction." 1 A question has arisen as to whether a challenged member should retire during the deliberation on the challenge. Some difference of opinion has existed upon this point, but, while it will not invalidate the proceedings for him to remain, the better opinion is that he should retire, the better to allow full freedom of discussion.2 Where an accused has more than one cause of challenge to a particular member, he should state all at the time of making the challenge. Excusing a Member. No exact rule can be laid down for determining when a court-martial should excuse a challenged member. It should not be too severe, and on the other hand it must avoid too great leniency. In the case of Captain L, a member was challenged on the ground that he was a material witness for the prosecution. No evidence was offered that he was such, yet, without inquiring of him whether he was at all biased from any 1 G. O. 21, A. G. O., July 27, 1863. He is required to retire until the decision is made, in the Articles recently proposed. previous knowledge of the facts at issue, the court decided in favor of the challenge. The Secretary of War, referring to their action, said, "Courts should, of course, incline to liberality in accepting every reasonable cause of challenge; but the admission of an objection without any reason shown beyond a mere supposition or prejudice of the prisoner, tends in effect to introduce into courts-martial the allowance of peremptory challenges-a practice wholly unknown to our military code." 1 Time for Challenging. The proper time for making challenges is after the reading of the order convening the court, at which time the judge-advocate should afford the opportunity. A challenge to the array should be the first made, but though properly made at this time, it would have to be entertained at any time, even after the sentence, as it calls in question the very legality of the court. If there are no challenges to the array, or such challenges are overruled, then follow the challenges to the poll. Courts-martial are not as strict in reference to challenges as the civil courts; and where, during the course of a trial, reasons for challenge should become known to the accused, not known when the opportunity for challenge was offered, courts-martial would ordinarily allow the challenge to be made, and, if valid, excuse the member. General Observations. A member excused by reason of challenge in one case, is not excused from sitting in other cases. New members, or supernumerary members, are challengeable whenever they take their seats. The record must always show that opportunity for challenge was offered. The judge-advocate is not challengeable. 1 G. C. M. O. 66, A. G. O., Sept. 21, 1866. While the Article of War only authorizes the prisoner to challenge, by custom of the service, the judge-advocate may exercise the right, but the cases are rare when the privilege is taken advantage of. While less than five members cannot perform any judicial function as a general court-martial, yet they may perform such acts as are preparatory and necessary to the organization of the court; and, if five are present, and one of them is challenged, the right of the four remaining to determine upon the challenge would seem necessarily to result; but where the court allows the challenge, being reduced below the minimum, it cannot proceed with the trial.1 When a member is challenged on the minor courtsmartial, the two remaining members may determine as to the validity of the challenge. It is not deemed essential to the validity of a field officer's court that the accused should appear from the record to have had an opportunity of challenge. It is advisable, however, if any valid objection to being tried by the field officer, detailed as the court, is presented by the accused, that such objection should be set forth in the record as a fact for the information of the reviewing authority.2 PLEAS. Every prisoner upon arraignment before a court-martial is called upon to plead. A plea is the answer by matter of fact to the charges preferred.3 Pleas are of various kinds, and may be divided for discussion into the following general classes: 1st. Pleas in bar of trial. 2d. Pleas in bar of judgment. 3d. Pleas to the matter of the charge. 2 Opinions J. A. G., p. 176. 1 Opinions J. A. G., p. 21. They are given in this order as this is the natural order of pleading, each subsequent plea being an admission that there is no foundation for the former. Pleas in Bar of Trial are divided into pleas to the jurisdiction, and special pleas. Pleas to the Jurisdiction. A plea to the jurisdiction sets forth a reason why the court cannot legally proceed with the trial. The decisions of the Supreme Court, cited in Chapter III., upon the liability of members of courts-martial for excess of jurisdiction, should be carefully borne in mind, in deciding upon pleas to the jurisdiction. The accused may plead under this head: 1st. Where arraigned before a minor court, that the offense is alone cognizable by a general court-martial.1 2d. While an officer or soldier, that the crime is one alone cognizable by a civil court of criminal jurisdiction. The case of Captain Howe illustrates this." While courts-martial in time of peace have no jurisdiction to try purely civil offenses, such as manslaughter, larceny, burglary, etc., yet, when these crimes are charged as "Larceny to the prejudice of good order and military discipline," or simply as "Larceny, etc.," and the specification shows an offense against good order and military discipline, they can be tried. 3d. That the accused is not amenable to military law, He may deny that he is an officer or a soldier. While certain prescribed formalities are necessary for enlistment, such as signing the enlistment papers, taking the oath, etc., yet, where a volunteer soldier, duly mustered into the service, received pay and performed the duties of a soldier, it was held that he should be treated as duly enlisted, though he may not have signed the enlistment articles: 1 Vide Chapter IV. as to jurisdiction of the minor courts. & Vide Chapter III. p. 43. |