not by a deputation of the court.

Oa oath.

Charges read

when to le avoided

as to the value of their testimony: the adverse party is also afforded an opportunity of objecting to their competency,' or of trying their credibility by cross examination.

It is not competent to a court martial to examine a witness by deputation of part of their number; though under particular circumstances, in the event of an important witness being prevented from attending at the appointed place of assembling, the court may, with the concurrence, or on the order, of the authority convening it, assemble at the quarters or residence of the desired witness.

All witnesses must give their evidence under the sanction of an oath, whatever their rank or station; the only exception by law allowed being on the plea of religious scruples.2

The charges against the prisoner or an abstract of them are sometimes read to the witness about to deliver his testimony, before the administration of the oath, at other times after; but the former, if the charge be read at all seems the preferable practice, as, by it, the matter before the court, touching which the witness expressly swears, is more directly brought to his consideration, whilst taking the oath.

Should the reading of the charge instruct the witness how to answer and have the effect of a leading question, as for example, on a trial for disrespect, the prisoner being charged with the utterance of particular expressions and the precise words being specified, the words should be omitted, as should in all cases any detail whether (1) See competency of witnesses, post.

(2) See pages 205.-207 for the cases where affirmations may be substituted.

of circumstances, gestures or expression, to which the prisoner might reasonably raise an objection.

The proper time to raise an objection to the competency of a witness is before he is sworn; in which case the practice formerly was to examine him on the voire dire; but the rule in the civil courts is now so far relaxed that should it be discovered in the progress of his examination that a witness is interested, it will then be time to take the objection.1

A witness, on being regularly sworn, is first examined by the party producing him, which is termed the examination in chief; the adverse party then cross-examines; the former party reexamines on such fresh matter as may have been elicted by the cross-examination; and, finally, the court put such questions as they may deem expedient. Witsesses before courts martial, immediately on being sworn, are sometimes directed by the president to relate what they know respecting the charge against the prisoner. In such cases, the witness, either to connect what he has to offer, from the influence of feeling or from other cause, is often betrayed into hearsay, and induced to make statements which cannot be legally received in evidence; it therefore becomes necessary, in recording the evidence, to distinguish between the parts of the witness's statement which can be legally received, and the parts which cannot; and although the duty may be ably performed by a judge advocate or president; yet impressions are sometimes made upon individual members, which the admissible parts of a witness's statement may not be calculated (1) Phil. 281.

Order of the of witnesses,

examination

in chief.

Advantage of means of

examining by

question and

answer.

Witnesses examined separately;

to convey; whereas, in the ordinary mode of
question and answer, as on the one hand, illegal
questions would be thrown out; so, on the
other, answers not bearing on the question would
be immediately objected to; the practice, there-
fore, of examining by question and answer,
though probably more tedious in the first place,
tends to greater precision in the admission of
evidence, and may also ultimately save the time
of the court, by excluding extraneous matter,
or by operating as a check to its admission.

On courts martial, no witness is permitted to
be present during the examination of another;
consequently the influence which the testimony
given by one may tend to create in another is
obviated, and collusion rendered more difficult.1
When a prisoner had, with the consent of a
brother officer, whose name was on the list of
witnesses, solicited the court to permit his assist-
ance during the trial, the request was denied,
and the court, in its remarks subjoined to the
sentence, animadverted on the request, observing
as to the conduct of the officer authorizing the
prisoner to solicit his assistance: "That the
paramount duty of an officer, and more especially
of an officer of rank," (the officer referred to was
the major of the regiment,) "is to support

(1) This is not the case in civil courts of english judicature, but either party, at any period of a cause, has a right to require that the unexamined witnesses shall be sent out of court. (Southey v Nash, 7 C. P. 632.) In Scotland so strictly is this rule observed, that if a witness has been present in court during the examination of another witness, so as to hear his evidence, he will be rejected. (Hume on the crim. law of Scotland, vol. 2. p. 365.) Mr. Tytler, guided by this custom of the courts of Scotland, has applied the principle to courts martial; he states (p. 252) that the circumstances of witnesses being present during a previous examination, would of itself afford a valid objection to their testimony, being a species of subornation. It is conceived that this author has not sufficiently recollected, that the practice of english courts of judicature can alone be referred to, when the custom of courts martial cannot be confidently relied on.

་

"1

discipline by adherence to the principles of established rules, rather than indulge an impulse however amiable, perhaps to the prejudice of justice, or countenance misconduct by injudicious commiseration." In confirmation of this rule, it may also be noticed that the adjutant general and quartermaster general, who had belonged to the expedition to Buenos Ayres, had been summoned, on the part of the prosecution, as witnesses on the trial of lieutenant general Whitelocke: the lieutenant general, conceiving they might be of use to him in his defence, submitted to the court that they might be permitted to be present during the trial; the judge advocate who prosecuted, observed that the evidence of those officers was material for the prosecution; the court, after deliberation, determined that lieutenant general Whitelocke's request could not be complied with, but that he might speak to those gentlemen as often as he thought proper.2 This custom of examining witnesses sepa- Exceptions; rately, though highly desirable and conducive to the development of truth and the detection of another; of falsehood, is not so rigidly observed as to exclude the testimony of a person who may, by inadvertence, have been present at the examination of other witnesses. It may, in certain cases, render his testimony suspicious, but does not render him incompetent.

The judge advocate and prosecutor, being necessarily present during the examination of all witnesses, if required to give evidence, are

(1) G. O. on the promulgation of the sentence of a general court martial on ensign Alex. Sutherland, 91st regiment, 10th July, 1813. (2) Lieutenant general Whitelocke's trial, p. 2.

witness inadvertently present during the examination

Judge Advocate if witnesses,

and Prosecutor,

examined prior to other

witnesses.

Prisoner may insist on the

prosecutor.

sworn immediately after the opening address of the prosecutor; nor would it be proper, at any other stage of the proceedings, to admit their examination or deposition in chief, except when called as witnesses for the defence.1

A prisoner may insist on the testimony of testimony of the the prosecutor, which arises from the fact previously stated, that on all trials by courts martial, the proceedings are, as in criminal cases, at the suit of the crown: the prosecutor may also be called upon to produce documents of any kind, deemed necessary by the prisoner for his defence.2

Member of a Court Martial may give evidence.

A member of a court martial, as a judge or juror, is a competent witness and may be sworn to give evidence in favor of, or against a prisoner, at any stage of the proceedings; it is however to be avoided, if foreseen. It need scarcely be observed, that no communication by a member in closed court, can be received; he must be sworn as other witnesses, in open court, and be subject to cross-examination; neither ought the private knowledge of any fact to influence the particular verdict of a member; he is sworn to administer justice strictly according to the evidence before the court, not the evidence con

(1) A proceeding, which is believed to be equally opposed to the customs of courts martial and civil courts of judicature, is reported to have been permitted on the general court martial which was held at Cork, in December, 1833, for the trial of captain Wathen, of the king's hussars. All the papers of the day, which reported the proceedings in full, stated that the prosecutor offered himself on the ninth day, and was accepted as a witness in support of the three first charges. When it is considered that this prosecutor had opened his case by an address, and had for eight days examined witnesses by interrogation on these charges, there can be but one opinion as to the inadvertence of the proceeding: nor ought this deviation from the well-established custom of the service to have any effect in unsettling a practice which is essential to the due administration of justice.