Page images


of war, and subversive of good order and military discipline.” Upon which charges the court came to the following decision: “With respect to the first charge, that from want of corroborating circumstances, the charge is not proved, and, therefore, doth acquit the prisoner.” Upon the second: “That walking in the garden belonging to the barracks was not breaking his arrest, and with respect to the latter part of the charge, the court, for the reasons assigned in the first charge, doth acquit the prisoner.” The court was reassembled by the major general commanding, to revise their opinion, but adhered to that first given. The proceedings being submitted to

the prince regent, were confirmed in the followRemarks of the ing terms: “Under all the circumstances of the

case, the prince regent has been pleased, in the name and on the behalf of his majesty, to confirm the sentence of the court: but as the court must be presumed to have founded their sentence of acquittal upon the belief that captain Hart's evidence was given under the impression of irritation, and an exaggerated description of what had occurred, there being no doubt of the legal sufficiency of one witness to justify conviction, if the evidence of such witness be entitled to full credit ; and viewing all the circumstances connected with the conduct of the prisoner, lieutenant Cameron, the prince regent has been pleased to consider him an improper person to remain in the 4th garrison battalion, and to command that he shall forthwith be placed upon half-pay.”

(1) Any inaccuracy perceivable in this paragraph is not attributable to the transcriber.

(2) G. 0. No. 346.

It has been well remarked by Mr. Phillips, on the subject of a single witness; that in deciding upon the effect of evidence, the question is, not by how many witnesses a fact may have been proved, but whether it has been proved satisfactorily, and so as to convince the understanding. The number of witnesses is not more conclusive on matters of proof, than a number of arguments on a subject of reasoning. If the law were in every case peremptorily to require two witnesses, this would by no means ensure the discovery of truth ; but it would infallibly obstruct its disclosure, wherever the facts were known only to a single witness; and thus secret crimes might escape with impunity. Abstractedly speaking, there cannot be any reason for suspecting the evidence of a witness because he stands alone. The evidence of a single witness may be so clear, so full, so impartial, so free from all suspicion and bias, as to produce in every mind, even in the most scrupulous, the strongest and deepest conviction. On the other hand, witness may crowd after witness, all asserting the same facts, yet none be worthy of credit. In short, it is the character of witnesses, and the character of their evidence, that ought to prevail; not their number.1

To the rule which requires that the best evi. Exceptions ; dence shall be produced, there are some excep- sufficient to tions. It is sufficient to prove that the accused acoused acted in acted in the character alleged in the charge, without bringing direct evidence of his appointment or engagement. Thus, on a charge of neglect of any special duties attaching to a particular

(1) 1 Phil. 147.

the character set forth;

or that the authority originating an order acted in the capacity.

post or employment, it would be sufficient to show that the accused had acted in the character set forth, without putting in proof the commission or order under which he acted; this has been ruled on an information in a common law court, against a military officer, for making false returns. So also on the trial of an officer or soldier, for disobedience of orders given by a particular person, specially authorized by his office, it is sufficient to show that the officer giving the order had previously, in the knowledge of the accused, acted in the capacity alleged. On a charge of desertion or other offence against military discipline, it is sufficient to prove that the accused received the pay, or did the duties of a soldier, without proving his enlistment or attestation. And the mutiny act specially provides, that a person confessing himself a deserter shall be deemed duly enlisted, and if serving at the time in any of his majesty's forces, that he shall be deemed to be and shall be, dealt with as a deserter.2

Fifthly.That hearsay is not evidence, is a rule arising from the admitted principle of english law, that every fact against a prisoner should be proved on oath, and in the presence of the accused, that he may have an opportunity of cross questioning the witness.

There are some deviations from this rule, the most essential of which is in the admission of the dying declaration of a person, (though not made in the presence of the accused,) who, having received a mortal injury, and being under the

Hearsay not evidence;


dying declarations,

(1) I Phil. 237. Rex v. Gardner, 2 Campbell, 513.

(2) Mut. Act, Sec. 23.

apprehension of immediate dissolution, relates the cause of his death or other material circumstance; the mind, in that awful state, is

presumed to be under as great a religious obligation to disclose the truth as is created by the administration of an oath:1 but it is held that such declarations are only admissible where the death of the party is the subject of enquiry. For the same reason, the dying declaration of an accomplice has been held as admissible, for the accomplice would have been a competent witness, if he had been living; this has been determined by all the judges : dying declarations in favour of the party charged with the death are admissible in evidence ;' but the declarations of a convict, at the moment of execution, cannot be given in evidence as the declaration of a dying man; for, being attainted, his testimony could not have been received on oath.

In all cases where the declaration of a deceased procire words witness is produced, the witness must undertake to repeat precisely the very words; he will not be allowed to speak as to the purport or effect of what deceased may have sworn; the jury alone (or the court martial) can judge of the effect of words.

As the declarations of a dying man are ad-state of mind mitted on a supposition that, in his awful may be situation on the confines of a future world, he had no motives to misrepresent, but, on the contrary, the strongest motives to speak without disguise and without malice, it necessarily follows,

must be given ;


(1) I Phil. 275. (2) R. v. Hutchesson. 2 B & C, 608.

(3) Rex v. Scaife, 1 M. and Rob. 551. (4) i Phil. 277.

(5) Ib. 274.

inquired into.

Testimony of a witness on a former trial when admitted ;

that the party against whom they are produced in evidence may enter into the particulars of his state of mind, and of his behaviour in his last moment; or may be allowed to show, that the deceased was not of such a character as was likely to be impressed by a religious sense of his approaching dissolution.'

The testimony on a former trial of a witness subsequently deceased, or who, having been duly summoned, may appear to have kept away by contrivance and collusion, may be given in evidence by a person who heard the deposition, the parties to the suit being the same. This exception to the rule under consideration, may possibly apply on an appeal from a regimental to a general court martial; or where, from the death or sickness of members, the former court might not have been able to pass judgment; and where, in consequence, a new court may have been formed, and the proceedings commenced de novo; this latter supposition is not supportable by any known precedent.

The evidence which a person has given before a committee of the house of commons is afterwards admissible against him on a criminal charge. It may therefore be argued, that the evidence given by a person before a court of inquiry may afterwards be admitted against him on a charge before a court martial. Neither the house of commons nor a court of inquiry administer an oath.

Hearsay is admitted in evidence when intention forms part of the subject of inquiry. Where

Evidence given
by a person
before the House
of Commons
and a Court of

(1) I Phil. 277, 278. (2) Ib. 274.

(3) 2 Starkie, 366, Rex v. Merceron.

« EelmineJätka »