Page images
PDF
EPUB

majority of voices."-Now dividing by five is not the act of a majority, and is throwing into the scale against the prisoner the weight of the minority. I therefore think, that in the above case, the punishment should be 200 lashes, N. O., L. M., and J. K., being the majority against G, H. and E. F. J. K. must be taken into the majority in all cases, and in favour of the prisoner N. O. and L. M. will side with J. K., in preference to forming a majority with G, H. and E. F.

It is clear that in the above case the prisoner will receive 20 lashes more than he would by the decision of the majority, and, that dividing by 5, is no act of a majority (42).

35. Finding of the Court-Wording of] The court are of opinion that the prisoner is guilty of the first charge, and not guilty of the second charge.

36. Sentence of the Court-Wording of.] The court sentence the prisoner (to be reduced if N. C. O.) to receive a corporal punishment of two hundred (200) lashes on his bare back in the usual manner.

(Signed)

E. F. Captain and President.

37. Recommendation of the Court.] If the court recommend the pri soner to mercy it should be inserted immediately under the sentence, and such members as do recommend, sign the recommendation; thus, if the whole court do recommend.

[blocks in formation]

38. Proceedings laid before the Comg. Officer.] The fair copy of the proceedings are laid before the comg. officer immediately they have been transcribed, for his approval and confirmation (43).

39. Revision of the Proceedings. The M. A. sec. xvi. (44), directs that they shall not be revised more than once. No fresh evidence can be received (45).

---- "

40. Revised Finding and Sentence.] "The court having, in obedience to regtl. orders of the day of 182— met (46) to reconsider their sentence, adhere to (or change) their former finding and sentence (47), (signed by the president as above).

[ocr errors][merged small]

(42) See this subject more at large under genl. ct.-mar. If there were four mem-bers, and two voted 200 and two voted 300 lashes, the punishment should, I conceive, be 200 lashes; there is no majority, and I take the side in favour of mercy, as in all cases of doubt.

(49) They are put into an envelope and wafered or sealed, and superscribed, "Proceedings of a regt. ct.-mar. to Lieut.-col.. , comg., Signed

(44) See No. 18, p. 29.

&c.

(45) See G. O. C. C. June 1, 1815, p. 397. (46) The members need not be sworn again. The proceedings are not final till approved; it is a continuation of the same act.

(47) The comg. officer may think the evidence bore strongly upon the second charge of which the court have acquitted the prisoner, and may point out in a letter to the president (or verbally) the particular point to which he desires to call the atten

41. Exécution of Sentence.] Art. 11, sec. xiv. (48), directs," Which sentence is to be confirmed by the comg. officer (not being a member of the ct.-mar.) before it be carried into execution."

[ocr errors]

No. II.-Appeal from a Regimental to a General Court-Martial.c The question as to the right of an appeal from a regtl. to a genl. ct.mar. has been before considered (49); it therefore remains to consider, the mode of proceeding when the appeal is made.

The cause of appeal may arise from different circumstances (50). It may be, as most usually happens, that the appellant is dissatisfied, generally, with the verdict of the regtl. ct.-mar., thinking that there was not sufficient evidence to support the verdict. And the officer who brought the soldier to trial is also at liberty to appeal. There is, however, a penalty attached in case the appeal proves to be vexatious and groundless (51).

1. A General Court-Martial directed to assemble to hear the Appeal.] The genl. ct.-mar. is composed of the same number of officers as in other cases, and proceeds as to the examination of witnesses, &c. in the same manner (52), with the following exceptions.

2. The General Court-Martial having duly assembled.] The court usually proceed as follows:

1st. The court record the fact of the appellant having been tried by the regtl. ct.-mar.

2d. Record the names of the president and members who composed the regtl. ct.-mar.

3d. The charges upon which the appellant was tried, with the sentence, approval and confirmation by the comg. officer (53).

4th.

tion of the court. The letter is read to the court and entered. The court is a closed

[merged small][merged small][merged small][ocr errors]

(49) See No. 6, p. 242.

"

g af gwb (50) It might be, that there had not been the proper complement of officers to compose the court, as required by art. 11, sec, xiv. of the Arts. of War (see p. 404); that the president of the court was not of the proper rank required sec. xiv, art. 16, of that the comg. officer had been a member of the court (see p. 408, and note 181, p. 45); that the court sat before, or beyond the legal time authorized by sec. xiv, art. 7 (see p. 376); that the prisoner had not been regularly furnished with a copy of the charges against him, or that there were native witnesses examined, without an interpreter being present (see case 2, p. 249); or that the punishment was excessive (see p. 398). There may be other grounds upon which an appeal may be founded.--(See No. 7, p. 243, No. 8, p. 246.)

(51) Art. 2, sec. x, p. 238.

(52) See No. iii, genl. ct.-mar. for the number of officers and the mode of proceeding on a trial by genl, ct.-mar, generally. An officer who had been a member of the regtl. court, should not be appointed a member of the genl. ct.-mar. to try the appeal, for no man should be a judge in his own case.

(53) An exact copy of the regtl. proceedings, which should be produced for this purpose, if practicable.

4th. The comg. officer is sworn, and asked if the regtl. ct.-mar, was assembled by his order.

5th. The appellant is asked if he is the person who appeals from the sentence of the regtl. ct.-mar.

3. The Appellant's Address to the Court.] The appellant is now called upon to state to the genl. ct.-mar., the ground upon which he appeals from the regtl. ct.-mar., and is at liberty to remark upon the evidence given at the former trial; for, as the cause for the appeal may originate in the circumstance of his not having been allowed to object to any evidence given against him, or to his having had evidence rejected which he thought might have been in his favour; from either of these causes, and many others, it will be impossible to ascertain his ground of objection till he be heard; though he should be cautioned in case he should be intemperate in his language or manner (this address is recorded).

4. Witnesses examined by the Appellant to support the Appeal.] The appellant next adduces such witnesses as he may think necessary to support his appeal, and these may be either the witnesses examined on the former trial, to whom he may wish to put questions which had been rejected by the regtl. ct., or they may be new witnesses whose evidence he wished to have been taken, but which had been before refused this would be going into proofs rejected.

In the supposed case-as to the evidence not being sufficient or credible, to warrant a conviction.

[ocr errors]

This may be as to the credit of the witness, in which case he should be allowed to call other witness to prove that they ought not to have been credited.

If the question be simply-that the evidence, though creditable in itself, was insufficient to support the verdict, the question narrows itself into a very small compass. Here the appellant should request the court to peruse the proceedings (54), having previously solicited the attention of the court to those points upon which he himself rests his appeal, showing, for instance, that C. D., a witness called by himself, contradicts the testimony of A. B. called on the part of the prosecution, as to a fact upon which the whole case depended, and that there was nothing adduced to discredit his testimony. In such a case he need not call a witness (55).

5. Procedure of Court after having heard the Address, &c.] Where the appellant has not called any witnesses, but simply stated a fact which, if true, ought to render the proceedings invalid and illegal; it then becomes the duty of the court to inquire into this fact by examining such witnesses as the appellant may state to be competent

to

(54) They must always be before the court; but they are not, of themselves, evi dence.

(55) On motions for a new trial, the court, before which it was made, would send for the notes of the judge who tried the cause. པོ་ང་ ༡་

to prove it, if he has not already informed the court upon this subject (56).

6. Witnesses examined by the Court to ascertain the Fact or Facts alleged by the Appellant.] The court examine the necessary witnesses to ascertain the truth of the appellant's statement.

Suppose the case to be, that the prisoner tried before the regtl. ct.mar. had not been duly furnished with a a copy of the charges upon which he was tried, so that he had not sufficient time to warn witnesses and prepare his defence.

Here the comg. officer, adjt., and serjt.-major of the regt. may be examined as to this fact, and this, if proved to have been the case, and the court deem this sufficient to set aside the proceedings of the regtl. ct.-mar., the proceedings should be closed-if this were the only ground of objection upon which the court had to deliver an opinion. If there be any other point, it must of course be examined into. Going into any other matter would be useless and improper, in such a case; but if the issue be upon the broad question as to the general insufficiency of the evidence to support the verdict, then the whole of the witnesses who were examined on the former trial, must be now examined.

In the latter case the true merits of the former trial cannot, otherwise, be fairly judged of; and it is manifest, that unless the examination extends to the whole of those witnesses, the case must come out of their hands imperfectly tried. For if a selection were made as to the witnesses on one side, rejecting those on the other, injustice would be done to the party whose witnesses were rejected; and in this trial, there are three parties concerned, the appellant, defendant, and the members of the regtl. ct.-mar.; and if either party were refused to have all the witnesses examined, such refusal would as much illegalize the proceedings of this court, as those of the former might have been, had a material witness been rejected; in this case, every thing that was before given in evidence would be material on the present occasionthis is presuming the objection to go to the whole of the former proceedings.

7. The Defendant and Members of the Regimental Court-Martial may Cross-examine.] The defendant may cross-examine upon the above examination, upon any evidence which immediately relates to his own conduct in the transaction (57), but not as to any matter not relating to the trial. And, the members of the regtl. ct.-mar, may cross-examine into any matter which affects their conduct in the proceedings, the rejection

(56) In the case of Serjt. Ginger, 34th regt., the court examined the witnesses themselves.-(See M'Arthur, vol. i, p. 359, and so in the case of private Leonard, H. C.'s (Bengal) E. regt. See case 2, p. 249.) The witnesses who were examined upon the former trial must be examined afresh upon this trial, and this evidence must be given viva voce; the evidence given on the former trial cannot be read as evidence.

(57) Leonard's case, printed Trial, p. 12. See case 2, p. 249,

L

jection of evidence, and so forth. The witnesses are examined by the appellant and court; though it is competent to any of the members to show that what the witnesses swear upon the present trial varies materially from that sworn to on the former, if the court should not observe the contradictory evidence; for otherwise, injustice would be done to the members.

8. Members of the Regimental Court-Martial may be examined.] Suppose the appellant states that he was not allowed time to prepare his defence, or any other fact in which the members of the regtl. ct.mar. are interested; the members may be examined touching such questions (58).

9. Re-examination of Witnesses.] As in all other cases, the party who examines in chief may re-examine, if it becomes necessary to do so.

P

10. Statement by the Defendant.] If the case requires it, the deft. is entitled to be heard, and to make any statement he may think proper, which is relevant to the points in issue.

11. Reply by the Appellant.] If witnesses have been examined, or any thing given in evidence affecting the character of the appellant, he is entitled to a reply, and to call witnesses to support it, if it has been attacked by any matter given in evidence on the present trial, by the witnesses who were examined on the former trial, or who may now have been examined, or in case he had not been allowed to do so on the former trial.

12. Resolution of the Court.] If the court are of opinion that the proceedings of the regtl. ct.-mar. are invalid or illegal (59), or is not supported by evidence (60), they will declare so and state the precise grounds upon which they found their opinion. In examining into such grounds, the court may consult No. 7, p. 243.

13. Finding of the Court.] If the court should be of opinion, that there has existed no proper ground for the appeal, that the evidence adduced upon the former trial was sufficient to support the verdict, that the appeal is vexatious and groundless, they will declare such to be their opinion (61).

14. Sentence of the Court.] If the court find the appellant's appeal to be vexatious and groundless, the sentence they are to award, will be quite distinct from that awarded by the regtl. ct.-mar. (62). The sentence of the genl. court, also, confirms that of the regtl. ct.-mar.

15. Revision of the Proceedings.] The proceedings of this court are subject to a revision once, as those of all other cts.-mar.; but fresh evidence cannot be adduced. But, if they should have stayed their proceedings, and have reported to the Com.-in-chief, any thing upon which

[ocr errors][merged small][merged small]
« EelmineJätka »