have been committed within the precincts of the command of the officer signing the warrant for the assembling of the court, yet, that after such proof had been adduced, the acts of the prisoner, in any other command, tending to establish the charge against him, were properly admissible in evidence. And hence it follows, unless place be as the jurisdiction of courts martial is extended influential. without limitation as to place, that a mistake of the place, unless the place be material, will not affect the proceedings; and that the acts of the prisoner tending to establish the charge whereever committed, may be given in evidence. material, not had, secondary is admitted, Fourthly. The best evidence must be pro- Best Evidence, duced of which the nature of the case will admit. A correct judgment of the extent of this rule depends, in a great measure, on the right understanding of the word evidence, and on our ability to judge the nature of the case, by comparing it with others which are well known and familiar to us. Although in cases where the best possible where not to be evidence cannot, by any exertion, be obtained, the law admits of secondary proof: yet it must be remembered, that proof, whether primary or but such secondary, and legal evidence, are inseparably connected; the law may relax in its demand, where impossibility interposes to the production of the best evidence; yet it cannot forego legal proof. The best legal evidence not being attainable, then, and then only, is the next best legal evidence admitted; but copies of copies, interested witnesses, hearsay (where intention does not constitute a subject of inquiry,) are under no circumstances to be admitted. The meaning of this rule is, not that the strongest possible secondary evidence must be legal evidence ; Production of secondary better can be had, raises a presumption against the party producing it. Distinction between best possible evidence and strongest possible assurance; evidence of the matter in question is absolutely and at all times required, but that no evidence shall be admitted as conclusive, which leaves grounds for the supposition that still stronger evidence remains behind in the party's possession or power for the very production of such evidence when secondary evidence, so far from establishing the point in issue, would tend to raise a negative presumption, since it may be inferred that the evidence withheld would have detected some concealed falsehood. A distinction also may be observed between the best possible evidence, and the strongest possible assurance. The law requires the best evidence, for the reasons before noticed, but it does not require the strongest possible assurance; in other words, it does not require a repetition of evidence beyond that which is sufficient to establish the fact. For instance, if a whole regiment should be present at some overt act of mutiny or insubordination, as the striking a commanding officer in front of his regiment, the law will be satisfied by the production of a part only of the persons present, and not the whole of them; for if one only were produced, and if, from the situation he were in when the occurrence happened, he had as favorable an opportunity of observing it as any person present, the evidence afforded by such individual would be complete, and not inferior in kind to any that could be produced. In such case, therefore, the best possible evidence (best in nature) would have been produced, though not the strongest possible assurance. Sufficient evidence is that which the law requires; not an accumulation of identical testi Number of witnesses necessary for proof of fact; 3 mony; hence it is that the law of England admits as sufficient, the testimony of one credible witness;1 except in case of high treason; involving corruption of blood; misprision of treason; and perjury. In the case of Atwood and Robins, at the summer assizes at Bridgewater, 1787, the judges of England were unanimously of opinion that an accomplice alone is a competent witness; and that if the jury, weighing the probability of his testimony, think him worthy of belief, a conviction supported by such testimony alone is perfectly legal. In the same year, two prisoners received sencence of death for burglary in the house of the celebrated Mrs. Hannah More, on the unsupported evidence of a pawnbroker who had received the stolen goods. In like manner, courts martial are accustomed to receive, as sufficient to a fact not admitting further proof, the evidence of one Single witness enjoined;" sufficient when more are not credible witness: but in case of false muster, and False Muster, offences against the provisions of the mutiny act regarding enlistment, the mutiny act prescribes offences two witnesses as necessary to conviction. The rule which obtains in courts of civil judicature, of admitting prosecutors to give evidence in criminal prosecutions, (as all such are supposed to be at the suit of the crown, and on behalf of the public,) applies equally on courts martial, (1) Two witnesses for the proof of a fact are required by the law of Scotland; and also by the Roman law; the maxim running, Unius responsio non omnino audiatur; but courts martial, in resort ing to courts of civil judicature for precedents, are restricted to the usages of the common law courts of England. (2) 1 Leach, 50. (3) In treason relating to the coin, one witness is sufficient.— 1 & 2 Phil. and Mary, c. 10, 11. Enlistment; Evidence of prosecutor sufficient in certain cases ; Case of Lieut Case of Charge. where the prosecution is always at the suit of the crown; and until the articles of war of the year 1829, the judge advocate was expressly enjoined to prosecute in the king's name. A prosecutor at a court martial, therefore, being a competent witness, his credibility only can be impeached, and must be judged from attendant circumstances. In cases where the privacy of the offence has excluded the possibility of further proof, and where no facts have been proved to exist, tending to place in doubt the credibility of the prosecutor, courts martial have admitted, as sufficient for conviction, the testimony of the prosecutor alone. A remarkable case is reported by M'Arthur; it occurred at a naval court martial: lieutenant Thackary, of the navy, was tried on charges exhibited by his captain, and amongst others, for going into the captain's cabin, when alone at tea, and calling him scoundrel and liar. The privacy of the offence excluded all other positive evidence but that of the prosecutor, which was admitted, on the opinion of counsel, and lieutenant Thackary was dismissed the service. So on a military court martial held at Kingston, Upper Canada, on the 25th and 26th May, 1814, paymaster Robert Francis, of the 103d regiment was arraigned, found guilty, and sentenced to be discharged, upon the undermentioned charge, which admitted the evidence of the prosecutor alone, notwithstanding the prisoner pleaded not guilty to the charge, and strenuously denied the facts set forth in it: "Scandalous and infamous conduct, unbecoming the character of an officer and a gentleman, in taking an opportunity when, (1) 2 M'Arthur, 56. Cameron. from the absence of a third person, he appeared to consider himself safe from legal prosecution, to use language highly disrespectful and reproachful to colonel Scott, his commanding officer, and to throw out disgraceful and infamous insinuations to the prejudice of his character, such conduct being also highly subversive of good order and military discipline, taking place at Kingston, Upper Canada, on the morning of the 19th May, 1814." A case occurred, about the time of paymaster Francis' trial, which produced some remarks by the prince regent, and must be entirely conclusive as to the legal sufficiency, on courts martial, of one credible witness (though he be the prosecutor) to produce conviction, except in cases specially requiring two; the case was as follows: lieutentant John Cameron, of the Case of Lieut. 4th garrison battalion, was arraigned at Bermuda, in June, 1814, upon charges preferred against him by captain Hart, of the same corps; "1st. Chargo, For conduct highly insubordinate and totally subversive of good order and military discipline, on the evening of the 20th May last, in a house rented for officers' barracks, by laying one hand upon the hilt of his sword, and striking captain Hart a blow with the other; and afterwards, when ordered in arrest, for making a violent blow at the said captain Hart, in direct breach of the articles of war. 2nd. For leaving the above barracks on the same evening, after being in his room in arrest by order of captain Hart, and for having, on his return, used insulting and contemptuous language to, and provoking gestures at, the said captain Hart, in breach of the articles (1) G. O. No. 344. |