Page images
PDF
EPUB

88.

-A01No-2. 03) Cozim . I t og ?? is in die sous I

77. of Misnomer, No. 75, p. 905. lt. 1919
78. Plea of Pardon, No. 74, p. 905. DO TI -

?;
79. of Pregnancy, No.76, p. 905. ' r ¿ i ii
80. Plans produced in Court, p. 906. tot vositasi ! . ''
81. Witness if objected to, p. 906. s. , mini !!
82. Insane Persons, Idiots, Lunatics, Incompetent, p. 907.
83. Children Competent if they understand Obligation of

an Oath, p. 907 .... . .!is. sroosi . ! 84. — Atheists Incompetent, p. 907. i n omnis 85. — Infamy of, renders Incompetent, p. 907. ' '

- Conspiracy of, renders Incompetent, p. 908. 87. -- Outlawry of, renders Incompetent, p. 908.

- Proof of Judgment, thereof required, p. 908. 89. Reversal of Judgment, or Outlawry, restores Competency,

p. 908. 90. Benefit of Clergy restores, p. 909. 91. Pardon restores, p. 909. 92. What Interest does not disqualify, p. 910. 93. What Interest does disqualify,' p. 910.- ' ." 94. Co-Defendants, when competent for each other, p. 910.4 95. Husband and Wife, not competent against each other, in cri

minal cases, p. 911. 96. Husband and Wife, not competent in favour of each other,

p. 911. 97. Injured Party competent as a Witness in criminal Prosecu

tion, p. 911. vi 98. Informers may be Witnesses in certain Cases, p. 911. su 99. Interested Witnesses, how rendered competent, p. 912 vi, 1.100, Examination of Witnesses in chief, p. 913. Roth

101. Leading Questions not allowed in Examination in chief, p. 913. 102. Cross-examination of Witnesses, p. 914.

103. Cross-examination of Witnesses producing Papers, if swom, 31 1. p. 914. ..

104. Leading Questions may be put in Cross-examination, p. 914. 105. Witnesses not compellable to answer Questions tending to

expose them to Penalties, p. 915. 106. Witnesses not compellable to answer irrelevant Questions,

tending to degrade their Character, p. 915. 107. Credit of Witnesses impeached as to general Character, p. 916. 108. Proof of contradictory Statements made by Witnesses, p. 916. 109. Cross-examination, as to verbal contradictory Statements made to third Persons, p. 916.

i iary 2) 110. Cross-examination, as to written contradictory Statements of Witnesses, p. 917.

. wir. : "711. Cross-examination, as to Paper lost or destroyed, p. 918 1179225 19:00) );28",'

112

2.TE

[ocr errors]
[ocr errors]

bald

112. Re-examination as to former Statements on Cross-examination, p. 918. ini",

P...** 113. Evidence in support of Character of Witness, p.918. ET 114. A Party cannot discredit his own Witness, p. 919. 115. Public written Evidence of Record, p. 919. ..'plos

116. Private written Evidence of Record, p. 920. inta * 117. Private written Evidence, in the Possession of the Parties, or of third Persons, p. 920. ,'

an con en 118. Notice to produce Papers, p. 920. . I press 119. Notice to produce, when dispensed with, p. 920.-- va fi 120. Affidavits, p. 921. 121. Books of Merchants and Trades-people, p. 921.- .- cos 122. Certificates, p. 922.

... 18 123. Depositions.-(See No. 28 to 31, p. 883 to p. 884. - 13 124. Gazettes, p. 922. 125. Instructions, p. 923. 126. Letters, p. 923. i 127. Notes of Hand, p. 923. 128. Official Papers, p. 923. 129. Promissory Notes, p. 923. 130. Records, p. 924.

. il va

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

. 1 No. 1.-REGIMENTAL, &c. Court MARTIAL.

[ocr errors]

Proceedings of an European (or Native) detachment (1), garrison (2), or regtl. (3) ct.-mar., (as the case may be), assembled at , on the

day of 182—, by order of A. B. comg. the station, garrison or regt. for the trial of C. D., (here insert the prisoner's rank and regt.), and such other prisoners as may be brought before it.' --' ., Barrackpoor, Monday, the day of , 182–, The court assembled this day at — o'clock (4) in the forenoon for the trial of C. D., in obedience to regtl. orders of date, appointing the following officers to compose the said court, viz.

.KOI President, Captain (5) E. F...in eten er p rom - Members,

. ;lt; Lieut. G. H.

Lieut. J. K. van L'int. Ensign L. M. Ensign N. 0.16). .::;} MOI

I . i I I. : (1) Consult, arts. 13 and 14, sec. xiv, p. 406, and art. 15, p. 407. CHUO 01

(2) Consult., art. 12, sec xiv, p. 404.

(8) Consult., art. 10, sec. xiv, p. 396, and art. 11, p. 404. à (4) The court cannot assemble before six o'clock in the morning. (See art. 7, sec. xiv, p. 376.)

(5). Or commissd. officer of eight years' standing. (See arh, 16, sec, xiy, p. 1408.) (6) There may be only three members, if more cannot be conveniently assem

bled.

cours, and fembled (7), the precis brought into

1. Court assembled, and Prisoner, brought into Courty The court having duly assembled (7), the president and members being all present in court, and the prosecutor (8) and witnesses (9) being present, the prisoner is called into court by name, and placed opposite to the president, on ann i , mint a n . p . .." .; 2. Read regtia Orders.). The president reads the regtl. orders, die recting the court-martial to assemble (10).

3. Jurisdiction of the Court.] If the president should observe any thing incorrect as to the wording of the charges, or any omission as to names or dates, or that the crime is not one that is properly cognizable by a regtl. ct.-mar. (11), the president should adjourn the court, and report the circumstance to the comg, officer, with a view to the correc. tion being made, or the omission supplied (12). If no difficulty of any such nature arises, then-.,. .. . iion phase log

4. Read over the Names of the Members of the Court to the Prisoner. The president reads over to the prisoner the names of the members composing the court by which he is to be tried, desiring him to pay attention.

, ,

..? ... :-) 5. The President is sworn.] The president is sworn by one of the members of the court as a matter of course (13).j pg ... 6. Challenges not usual at Regtl. Cts.-mars]. According to G.O.C. C, 6th May, 1820 (14), the prisoner is not to be asked if he has any Se yon srákpre d

objection bled.-(See art. 11, sec. xiv, p. 404.) If a native court, then insert the pames of the subadars and jemadars, and the name of the superintending officer, and the interpréter, immediately under the names of the members of the court. 1 44 * ***77) The president calls over the names of the members of the court, and the und swer to their names, and take their seats, the senior member on the rigtit, and the mest senior to the left of the president, and so on with respect to the rest. +(8) If the prosecutor be not in attendance, the court should: wait a reasonable time, after which the president should adjourn the court, and report the cause to the comg, officer. (See par. 2, p. 674.) mit 4 gi r goed vir n a li? mbro

(9) The witnesses should be all assembled in court, and admonished not to come verse with each other upon the subject of the trial. If it be suspected to be neces sary, they should be kept separate. 4. De mti : 1560.40.04 UI)

(19) The adjt, attends with the regtl. orderly book, or with a copy of the ader signed by bimself, by order of the comg. officer. 12: ? or bride a shame f7 n067 34: Io pagal

(11) See G. 0. C. C. 22d Oct, 1813, No. 2, p. 396. ito n

(12) If there be any material alteration made, or the prisoner should not have had due notice of the trial coming on, time should be given to the prisoner. See case P: 249.) aven telike musi 19 lu'nda en 12 ti', II.

(13) He cannot be objected to as members are ; but see more on this subject vader the head of genl. cts.-mar. There is one valid objection (sce note 181, p. 46) which, or if any other arises, the court may act as pointed out in note 14.. ..

(14) The order (see p. 397) directs the prisoner being informed before the court meets, and to state any objection he may have when the court luas met; if he should state any objection the court should be closed, and the prisoner will then state his objection. The members objected to must not retire, as all the members must be present, or the act of the court would be illegal. They need not, however, say any things and may express a wish not to be a member. The prisoner, having stated bis objet

tion, is directed to be withdrawn, and the court take into their consideration what he has - said.. If the court decide that the objection is a valid one, the member would be directed

objection to make to any members of the court; therefore, the court is to be sworn in. .. . .

," od M D ST81 -7. The Members of the Court sworn.] The members are next sworni, usually by the four members standing up, and holding the New Testament with their right hand, and repeating the oath after the president (15); after which, they kiss the book, and then resume their seats.

.. . 5 .6-3 )*: 77 18. The Chargés read to the Prisoner.] The president - now desires the prisoner to attend, while the crime is read to him. 327695 meta ! • 9. Prisoner asked if Guilty or not Guilty. The president Hext'addresses the prisoner :-"You have heard the charges which have just been read to you, and do you understand them?". If he answers in the affirmativè,——«How say you are you guilty or not guilty?" If the prisoner pleads guilty, he should be recommended to withdraw his plea, and to plead not guilty (16). If he pleads not guilty, "and this plea must be simple, and without qualification or justification" (18), the whole of the witnesses are directed to withdraw, and .

10. Plea recorded.] The president then records the prisoner's plea, and

1 . 11. Prosecutor makes his Statement.] The prosecutor makes his statement, if he has any thing to offer to the court with a view to èxplain the nature of the crime; but before he is sworn (19). This may either be done verbally, or by reading any paper he may have prepared for that purpose.

This paper is recorded upon the proceedings, pot as evidence, but simply as his statement of the case, tending to inform and assist the court in their proceedings (20); after which . Die **!!!! e vog, di in - en je wilt

12. to withdraw, and the court, if it is not reduced below the legal number, may proceed with the trial; otherwise they must adjourn, and report to the comg. Officer, in order that other members may be appointed. In the Royal regt. of artillery, &c. challenges are not usually made.(See more on this subject under the head genl. ct.mar-challenges.) .

.

.' ' " " *" ** (15) See No. 6, p. 410, and the oath, No. 2, p. 408. . . !

(16) If he persists in pleading guilty, then there would be an end of the proceedings, and the court would have nothing to do but to record the plea. The objection of recommending the prisoner to plead not guilty is, because it is most favourable to him; and as Sir C. Morgan observed (17), “evidence must be heard of the fact or facts; or how can the crown, or the officer authorised to confirm a sentence', have any ground for extending mercy.” Under any circumstances, the prisonet should be allowed to call witnesses as to his character. ". .ioni Pro

! (17) See Tytler, p. 237.

(18) Tytler, p. 239. If the prisoner pleads guilty as to part, and not guilty as to the rest, the court may either recommend him to plead not guilty generally, or record the admissions made by the prisoner.."

(19) “'If the prosecutor has any opening of his case to submit to the court, he should deliver that before he is sworn, after which he is to be sworn, and to give his testimony. This, however, is not to be understood as making it a necessary qualification for a prosecutor, that he should also be a witness." —Sir C. Morgan's note, Tytler, p. 243.) ' 1 ; ! ** ne ore Pr i soner tong, % .; 19 (20) And the court are at liberty to Tequire any part to be struck out which may 3o

appear

-4. 12. 1st Witness for the Prosecution called in and examined in chief)

The prosecutor now calls his witnesses, one by one, in such order as he may judge to be expedient. A witness (E. F.) is called into court by name, and he is duly sworn (21). It is not necessary to read the charges to the witness (22).

. .

. · The prosecutor puts such questions as he may deem necessary (23), but they must not be leading questions. Thus, the witness should not be asked, "Did you not see him go ?" but the question should be, “ did you see him go?" and without any emphasis. This is a better method, than the allowing a witness to give a long narrative, much of which may be quite immaterial, and will be certain to extend the proceedings; for as the prisoner has a clear right to cross-examine into all such matter, it is obvious that this must frequently be the case; and, in proportion to the number of witnesses, will this be the case.

It is therefore recommended, that reference be had to the usual proofs required in such case. Suppose, for instance, the charge beabsence without leave (24), then, by referring to the usual course pursued on such occasions, the questions to be put will be suggested at once. It is owing to this course of proceeding, that trials in courts of justice, in criminal cases, are so quickly terminated. The very words of the witness should be taken down (25). If they be unintelligible; they should be accompanied with an explanation. Thus, if any term be used which requires an explanation, there should be inserted (meaning so and so). The prosecutor having finished his examination in chief, the court record, “ the prosecutor not having any further questions to put."-1

13. Ist Witness cross-examined by Prisoner.] The prisoner is first entitled to cross-examine the witness. The cross-examination, may

, , extend appear objectionable, as being acrimonious, or reflecting upon third persons, and those not being parties concerned. This statement may be sworn to by the prosecutor, and then received as evidence, by such parts as he can swear to being marked as such. This is sometimes done to save time.-(Sir J. Murray's Trial, p. 194.)

Hit be a written stateinent, the president keeps it and enters it as read, inserting it aftor the court adjourns and preserving it with the original proceedings... Hz (21) See the several oaths at p. 412.

(22) Such is not the practice in courts of justice. Where they are read, the whole are not read to a witness who has only to give evidence to a part. In such cases only such part would be read.

(29) Questions are frequently prepared beforehand, and given in to the presidenas upon slips of paper. This gives the president and court the opportunity of judging of their being legal questions, but the force of questions on a cross-examination mest be diminished by this mode.

(24) See No. 4, p. 170.

(25) If the court take down the general tenor of the words, there may be an ob jection taken, by which the time of the court may be occupied when they should be examining another witness. If any alteration be inade, the witness should be asked I that be his meaning, and the prisoner should be asked if he objects to the alteration made. He may insist on the very words being recorded; they may be very material to bis defence. --(See objection to evidence, Chap. XXIII, No. 43, p. 899.)

« PreviousContinue »