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The notice having been proved,
what conviction, may be given in evidence;
where under different names
must be shewn.
It is incumbent on the prosecutor to prove to the satisfaction of the court that the prisoner has received duel notice of the intention to produce evidence of previous convictions, as the court cannot otherwise entertain the enquiry. It is directed by the circular of the 9th April, 1839, that the evidence of previous convictions shall be “ limited to convictions by courts martial or courts of ordinary criminal
jurisdiction.” In cases where the prisoner has the identity of passed under different names, previous convic
tions must be recorded according to the name which he bore when they took place, but it must be made appear, on the face of the
proceedings, no matter in what form, that the prisoner was the person who underwent them."
The best proof of a former conviction must be the record of the court, by the which the prisoner was found guilty. It is a rule of evidence necessary to observe in this case, that where a fact by courts martial can be established by written proof, which is in its nature superior to parole proof, the writing ought to be produced, and parole evidence of the fact is inadmissible. On this subject, the rules of written evidence, which will be touched on in a subse
quent part of the work, may be referred to; when and how but it may here be observed that, by a circular
from the war office, it appears, where expense and inconvenience would attend the production of the court martial book in proof of former convictions, the same may be dispensed with, it being sufficient for any officer or non
extracts from court martial book may be admitted ;
(1) See page 168. (2) 21 Sec. Mut. Act. 84 Art. War.
(3) Addenda, Gen. Reg. p. 69. (4) Letter Judge Advocate General 16th Oct. 1831, See page 162.
commissioned officer to produce an extract from the said book, which he can verify by having compared it with the original, or which is certified by the signature of the adjutant or other officer having the custody of the book, provided the officer or non-commissioned officer producing the extract, can testify that the production of the book itself would be attended with public inconvenience, and can further testify (in case of such extract being certified by any signature) that such signature is authentic. The defaul- Defaulters' book ters' book, in which an abstract from the sen- convictions by a tence of the court may be entered, cannot legally be admitted in proof of such sentence by a court, although such has not been infrequent.?
The statute 7th and 8th Geo. 4., c. 28, Previous con; which declares a more exemplary punishment power, for subsequent felonies, provides “ that a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction of the previous felony purport- Evidence of. ing to be signed by the clerk of the court, or other officer having the custody of the records of the court where the prisoner was first convicted, or by the deputy of such clerk or officer, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed the same.” The mutiny act recog
(1) Circular, No. 772, War-Office, 23rd July, 1834. (2) As extracts from a court martial book may be received in proof of convictions by a court martial, where the production of the book itself would be attended by public inconvenience, the same being duly authenticated; so, under similar contingencies, upon a trial for habitual drunkenness, may extracts from the defaulters' book be admitted in evidence of convictions by a commanding officer.
Wien oral testimony may be a imitted to prove convictions by courts martial or of civil Judicature.
Previous offences to be rucorded ;
nizes the same principle in the case of a second trial for a fraudulent confession of desertion; and it would seem, in the absence of any official decision on this point, that courts martial might properly admit the same evidence of previous convictions by civil courts.
If the record of the court, or an authenticated extract from it, cannot be produced, oral testimony of the fact of the conviction may be admitted.
It is not sufficient, in recording previous convictions, to state the number of convictions, but it is necessary to particularize the description of court, the offence or offences of which the accused may have been convicted, together with the sentence and the punishment inflicted, not only for the consideration of the court, but for the approving authority.
It is scarcely necessary to remark, on the reennvictions and opening of the court to receive evidence of
other desertions, previous convictions, or as to
character, the parties to the trial being admitted, dure ter temaeny that the prisoner, if he should desire to do so,
has a right to examine witnesses or to produce evidence to rebut that brought against him; it can only be to afford the prisoner this oppor
tunity, that notice is so imperatively enjoined. the only face in It must however be understood, that the only
fact put in issue, on the enquiry as to previous convictions, is the conviction itself.
Lord Hill, in a circular memorandum, dated 28th July, 1841, strongly animadverted on the
(1) End of 23rd clause. (2) Namely, a certificate under the hand of the officer having official custory of the record; a certificate from a gaoler or other person, although having oficial cognizance of the conviction would be clearly inadmissible as evidence of the act.
prisoner present, when character is received ;
and may pro
brought against him;
issue being the conviction ;
irregularity of receiving evidence as to pre- celuing evidence vious convictions on the trial of soldiers who convictions and had become mutilated and had been acquitted character after by the court of design-condemning it as the poi saracetui “equally repugnant to justice and to reason. When a soldier is found guilty of having wilfully maimed himself, it becomes the duty of the court to receive evidence, as in ordinary cases, for its own guidance in affixing punishment; but it is clearly a perversion of justice, and of the intent of the mutiny act, and of the articles of war, for a prisoner, maimed by accident, and, consequently, pronounced by the court, not guilty, to have all his former transgressions and offences raked up and recorded against him, however good and exemplary his conduct may have been for a long series of years since the commission of them.”
Courts martial were formerly authorized if Enquiries as to they thought fit, to enquire by evidence into the ser are now general character of the prisoner, “to enable it to mete out punishment so as to satisfy the ends of justice with greater precision.” They are now required always to do so when a soldier has been found guilty, “ for their own guidance in awarding punishment as well as that of the confirming authority sanctioning its being carried into effect."'
It is particularly to be noticed that the enquiry Enquiry cannot is confined to the general character of the particular acts accused; particular offences cannot be referred to, much less can the circumstances, relating to offences for which the prisoner may have been
(1) Circular-Horse Guards, 24th Feb., 1838.
(2) Gen. Reg. p. 246.
witnesses restricted to
formerly tried, become the subject of renewed investigation. Neither can it with propriety be stated, without referring to the offences, that the prisoner has been confined a certain number
of times within a specified period. A witness general opinion examined with a view to general character may,
in order to refresh his memory, and to be better enabled to answer the general question, refer to the defaulters' book ; but he cannot be permitted to read from it, to lay it before the court, or to state the facts which it records. He must be restricted to a general opinion, which he cannot be permitted to support by reference to particular parts of the conduct of the prisoner ; as it would at once, and without any notice, put him on his trial for every act of his past life which may be referred to. It will be for the accused either to submit to the imputation cast on his general character;' to meet it by conflicting testimony; or if he think fit, to cross-examine the witnesses, as to their means of knowledge, and as to the facts or grounds which may have led to the opinion given.
The twenty-first clause of the mutiny act,
which authorizes enquiry as to previous convicthe quantum oftions and other desertions, has been repeatedly
altered. In the mutiny acts since 1835 it is declared, that “every desertion previous or subsequent to that for which he (the prisoner) shall be under trial, as well as every previous conviction for any other offence, may be given in, in evidence against him ;” the words in italics were substituted in 1834, for the expression “as an
prisoner may cross-examine as to grounds of opinion.
(1) See Witness may refer to notes.-Index.
(2) 51 Art. War.