tions as to such term, held that such enlistment though in violation. of the act of August 1, 1894, was not void, but voidable only at the option of the Government. Card 1512, July, 1895. So, where a soldier had been discharged without honor from the preceding term of enlistment and had by concealing this fact again enlisted, it was held that though the latter enlistment were viewed as both fraudulent and in violation of the act of August 1, 1894, the Secretary of War could cause him to be tried for the fraudulent enlistment, or summarily discharged therefor without honor, or to serve out the enlistment. Card 4077, April, 1898.

1276. The act of August 1, 1894, prescribes that no person who is over 30 years of age shall in time of peace be enlisted for the first enlistment in the army. Held that an enlistment in the marine corps would not render a subsequent enlistment in the army a second enlistment under this act and thus remove the limitation as to age; service in the marine corps not being service in the army. Cards 1339, May, 1895; 2530, August, 1896; 3758, January, 1898.

1277. The act of August 1, 1894, is limited to "time of peace”. Held, therefore, that the enlistment of four musicians formerly in the Spanish Army in Porto Rico, could, the war with Spain not having terminated, legally be authorized. Card 5148, October, 1898.

1278. The "last preceding term of enlistment" as used in sec. 2 of the act of August 1, 1894, is not limited to service in the regular army; it applies as well to service in the volunteer army. Cards 5840, 6203, March and April, 1899.

1279. The term of three months after honorable discharge within which a man may be re-enlisted under the act of August 1, 1894, begins on the day next following the day of discharge. Card 1084, March, 1895.

1280. The enlistment of an Indian prisoner of war terminates his status as such prisoner, and he cannot be returned to it on his discharge from the service. Cards 16, July, 1894; 1193, April, 1895.

1281. An enlistment in the United States army does not under any law of the United States operate as a discharge from the national guard of a State. Card 5753, January, 1899.

1282. The statute (act of March 3, 1899) which authorizes the enlistment of cooks in the army makes no limitation as to the race to which the persons so enlisted may belong. Held, therefore, that there was no legal objection to the enlistment as cooks of Japanese who are citizens of the United States. Card 6751, July, 1899.

1283. By the act of March 2, 1899, it is provided "that the limits of age for original enlistments in the army shall be eighteen and thirtyfive years." Held, that the fact that an applicant over thirty-five

years of age, and without prior service as an enlisted man, had served as an officer of volunteers, would not prevent his enlistment from being an original enlistment within the meaning of the statute. Card 6844, August, 1899.

1284. There is no statute that authorizes even the President to accept into or retain in the military service of the United States an individual soldier on a condition that he shall be sent to this or that part of the country to serve. A practice of entering into such agreements would soon prove impracticable and inconsistent with public policy and the interests of the service. Card 6731, July, 1899.

1

EVIDENCE.

1285. Courts-martial should in general of course follow-so far as apposite to military cases-the rules of evidence observed by the civil courts, and especially the courts of the United States, in criminal cases. They are not bound, however, by any statute in this particular, and it is thus open to them, in the interest of justice, to apply these rules with more indulgence than the civil courts;-to allow, for example, more latitude in the introduction of testimony and in the examination and cross-examination of witnesses than is commonly permitted by the latter tribunals. In such particulars, as persons on trial by courts-martial are ordinarily not versed in legal science or practice, a liberal course should in general be pursued, and an over-technicality be avoided. XXIX, 480, December, 1869; XXXI, 273, March, 1871; XLII, 74, December, 1878; LV, 497, March, 1888; Card 8471, June, 1900.

1286. The rules of evidence should be applied by military courts irrespective of the rank of the person to be affected. Thus a witness for the prosecution, whatever be his rank or office, may always be asked on cross-examination, whether he has not expressed animosity toward the accused, as well as whether he has not on a previous occasion made a statement contradictory to or materially different from that embraced in his testimony. Such questions are admissible by the established law of evidence and imply no disrespect to the witness, nor can the witness properly decline to answer them on the ground that it is disrespectful

1See 3 Greenl. Ev., § 476; Lebanon v. Heath, 47 N. Hamp., 359; People v. Van Allen, 55 N. York, 39; 2 Opins. At. Gen., 343; Grant . Gould, 2 H. Black., 87; 1 McArthur, 47; McNaghten, 180; Harcourt, 76; DeHart, 334; O'Brien, 169; G. O. 51, Middle Dept., 1865; G. C. M. O. 60, Dept. of Texas, 1879; do. 3, 52, Dept. of the East, 1880.

2 Compare the views expressed in G. C. M. O. 32, War Dept., 1872; do. 23, Dept. of Texas, 1873; do. 60, Dept. of California, 1873. See also Court-Martial Manual (1901), par. 2, p. 42.

to him thus to attempt to discredit him.' XXXII, 642, May, 1872; XLI, 33, October, 1877.

1287. The weight of evidence does not depend upon the number of the witnesses. A single witness, whose statements, manner, and appearance on the stand (see § 1365, post) are such as to commend him to credit and confidence, will sometimes properly outweigh several less acceptable and satisfactory witnesses. XXXV, 55, December, 1873.

2

1288. Evidence of the good character, record, and services of the accused as an officer or soldier is admissible in all military cases without distinction-in cases where the sentence is mandatory as well as those where it is discretionary-upon conviction. For, where such evidence cannot avail to affect the measure of punishment, it may yet. form the basis of a recommendation by the members of the court, or induce favorable action by the reviewing officer whose approval is necessary to the execution of the sentence. XIX, 35, October, 1865; XXXVI, 446, 471, May, 1875. Where such evidence is introduced, the prosecution may offer counter testimony, but it is an established rule of evidence that the prosecution cannot attack the character of the accused till the latter has introduced evidence to sustain it, and has thus put it in issue. XXVIII, 593, May, 1869.

3

1289. Upon a trial where the offence is drunkenness or drunken conduct charged under Article 62, or drunkenness on duty charged under Article 38, it is not essential to confine the testimony to a description of the conduct and demeanor of the accused, but it is admissible to ask a witness directly if the accused "was drunk," or for a witness to state that the accused "was drunk," on the occasion or under the circumstances charged. Such a statement is not viewed by the authorities as of the class of expressions of opinion which are properly ruled out on objection unless given by experts, but as a mere statement of a matter of observation, palpable to persons in general, and so proper to be given

See opinion of the Judge-Advocate General, as adopted by the President, in G. C. M. O. 66, Hdqrs. of Army, 1879; and compare remarks of reviewing officers, in G. O. 11, Dept. of California, 1865; G. C. M. O. 31, Dept. of Dakota, 1869; do. 8, Fourth Mil. Dist., 1867.

2 Compare Rudolph v. Lane, 57 Ind., 115; McCrum v. Corby, 15 Kans., 117.

In commencing the examination of a witness, it is a leading of the witness, and objectionable, to read to him the charge and specification or specifications, since he is thus instructed as to the particulars in regard to which he is to testify and which he is expected to substantiate. So to read or state to him in substance the charge and ask him "what he knows about it," or in terms to that effect, is loose and objectionable, as encouraging irrelevant and hearsay testimony. The witness should simply be asked to state what was said and done on the occasion, &c. A witness should properly also be examined on specific interrogatories, and not be called upon to make a general statement in answer to a single general question. Compare G. O. 12, Dept. of the Missouri, 1862; do. 36 id., 1863; do. 29, Dept. of California, 1865; do. 67 Dept. of the South, 1874; G. C. M. O. 14, 24, Dept. of Dakota, 1877.

by any witness as a fact in his knowledge.1 XXII, 635, March, 1867; XXIV, 79, December, 1876.

not

1290. A statement to the effect that a person was intoxicated inadmissible in evidence as being an expression of an opinion. Whether a person is drunk or sober is "a fact patent to the observation of all, requiring no scientific knowledge." LVI, 165, May, 1888.

1291. Except by the consent of the opposite party, the testimony contained in the record of a previous trial of the same or a similar case cannot properly be received in evidence on a trial by court martial; nor can the record of a board of investigation ordered in the same case be so admitted without such consent. In all cases (other than that provided for by the 121st Article of War) testimony given upon a previous hearing, if desired to be introduced in evidence upon. a trial, must (unless it be otherwise specially stipulated between the parties) be offered de novo and as original matter. XIX, 41, October, 1865; XXVII, 318, October, 1868.

1292. Affidavits, taken ex parte, and not as depositions under Art. 91, are in no case admissible as evidence on a trial by court-martial, if objected to. VII, 113, February, 1864.

3

1293. The muster rolls on file in the War Department are official records and copies of the same, duly certified, are evidence of the facts originally entered therein and not compiled from other sourcessubject of course to be rebutted by proper evidence that they are mistaken or incorrect. III, 523, August, 1863. So though such rolls are evidence that the soldier was duly enlisted or mustered into the service and is therefore duly held as a soldier, they may be rebutted in this respect by proof of fraud or illegality in the enlistment or muster (on the part of the representative of the United States or otherwise), properly invalidating the proceeding and entitling the soldier to a discharge. VIII, 488, May, 1864.

1

4

1 People . Eastwood, 14 N. York, 562; Stacy . Portland Pub. Co., 68 Maine, 279; Sydleman v. Beckwith, 43 Conn., 12; State v. Huxford, 47 Iowa, 16; G. O. 42, Dept. of the Platte, 1871.

2 Lawson on Expert and Opinion Evidence, p. 473, et seq.

See G. C. M. Ó. 10, Hdqrs. of Army, 1879; G. O. 21, Dept. of the Missouri, 1863 do. 17, Dept. of Arkansas, 1866; do. 19, Third Mil. Dist., 1867; do. 49, Dept. of Dakota, 1871.

9966

As applied to military cases, it would be better to say, in lieu of the expression "if objected to,' unless expressly consented to by the accused with full knowledge of his rights."

But note in this connection the ruling of the Supreme Court of Massachusetts in the case of Hanson v. S. Scituate, 115 Mass., 336, that an official certificate from the Adjutant General's Office to the effect that certain facts appeared of record in that office but which did not purport to be a transcript from the record itself, and was therefore simply a personal statement, was not competent evidence of such facts.

It was held by the U. S. Supreme Court in Evanston . Gunn, 9 Otto, 660, that the record, made by a member of the U. S. Signal Corps of the state of the weather and

1294. General orders issued from the War Department or Headquarters of the Army may ordinarily be proved by printed official copies in the usual form. The court will in general properly take judicial notice of the printed order as genuine and correct. A court martial, however, should not, in general, accept in evidence, if objected to, a printed or written special order, which has not been made public to the army, without some proof of its genuineness and official character.1 XV, 216, May, 1865.

2

1295. In view of the embarrassment which must generally attend the proof before a court-martial of the sending or receipt of telegraphic messages by means of a resort, by subpana duces tecum, to the originals in possession of the telegraph company, advised that the written or printed copy, furnished by the company and received by the person to whom it is addressed, should in general be admitted in evidence by a court martial in the absence of circumstances casting a reasonable doubt upon its genuineness or correctness. But where it is necessary to prove that a telegram which was not received, or the receipt of which is denied and not proven, was actually duly sent, the operator or proper official of the company, or other person cognizant of the fact of sending, should be summoned as a witness. V, 458, December, 1863; XIV, 259, March, 1865.

1296. A court-martial (by subpoena duces tecum, through the judge advocate) may summon a telegraph operator to appear before it and bring with him a certain telegraphic dispatch. But it is beyond the power of such court to require such witness against his will to surrender the dispatch, or a copy, to be used in evidence, if he be a civilian. 31, 449, April, 1889. (See note to § 231, ante.)

1297. The fact that a party is a public enemy of the United States or has engaged in giving aid to the enemy does not affect the competency of his testimony as a witness before a court martial. Where testifying, however, in time of war, either in favor of a person in the enemy's service or an ally of or sympathizer with the enemy, or against a Federal officer or soldier, his statements (like those of an accomplice) are ordinarily to be received with caution unless corroborated. IX, 164, 173, June, 1864; X, 330, September, 1864; XIII, 499, March, 1864;

the direction and velocity of the wind on a certain day, was competent evidence of the facts reported, as being in the nature of an official record kept by a public officer in the discharge of a public duty.

But that the entries in such rolls are not proof of the commission of an offence, as desertion for example, see § 1056, ante.

See a similar ruling in G. O. 121, Second Military District, 1867.

"The subject of the extent of the authority of the courts to compel telegraph companies to produce original private telegrams for use in evidence is most fully treated in an essay by Henry Hitchcock, Esq., on the "Inviolability of Telegrams," published in the Southern Law Review for October, 1879.