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XIV, 645, June, 1865; XX, 86, October, 1865; XXI, 54, November, 1865.

1298. Desertion is not a felony and does not render a witness incompetent at common law or before a court martial. Nor does the loss of citizenship upon conviction of desertion, under Secs. 1996 and 1998, Rev. Sts., have such effect; the competency of a witness not depending upon citizenship. A pardon of a person thus convicted would not therefore add to his competency. But where it was proposed to introduce such a person as a material witness for the prosecution in an important case, advised that it would be desirable to remit the unexecuted portion of his sentence, if any. LI, 254, December, 1886.

1299. A confession is competent evidence when free and voluntary: otherwise where made through the influence of fear or hope of favor.' So a confession that he had deserted, made by an alleged deserter to a police officer, who, on arresting him, assured him that if he told the truth he (the officer) would give him an opportunity to escape before being delivered up to the military authorities-held clearly not admissible in evidence as having been induced by promise of favor on the part of a person in authority. LV, 217, December, 1887.

1300. The testimony of an accused party is competent only when presented as authorized by the act of Mch. 16, 1878, c. 37, viz., when the party himself requests to be admitted to testify. Such testimony is not excepted from the ordinary rules governing the admissibility of evidence, nor from the application of the usual tests of cross examination, rebuttal, &c. But an accused so testifying cannot be compelled against his objection to criminate himself." Card 1495, July, 1895.

1301. It is in general competent, on trials by court martial, for the accused to put in evidence any facts going to extenuate the offence and reduce the punishment, as the fact that he has been held in arrest

1United States v. Pumphreys, 1 Cranch C. C., 74; United States v. Hunter, id., 317; United States v. Charles, 2 id., 76; United States v. Pocklington, id., 293; United States v. Nott, 1 McLean, 499; United States v. Cooper, 3 Qu. L. J., 42.

If an officer were to admit to a superior, in writing, the commission of a military offence and promise not to repeat the same, under the well-founded hope and belief that a charge which had been preferred against him therefor would be withdrawn, the admission thus made, in case he were actually brought to trial upon such charge, would not properly be received in evidence, against his objection. Confessions made by private soldiers to officers or non commissioned officers, though not shown to have been made under the influence of promise or threat, should yet, in view of the military relations of the parties, be received with caution. See G. C. M. O. 3, War Dept. 1876; G. O. 54, Dept. of Dakota, 1867. And compare Cady v. State, 44 Miss., 332. Mere silence on the part of an accused, when questioned as to his supposed offence, is not to be treated as a confession. See Campbell v. State, 55 Ala., 80.

2 See G. C. M. O. 8, 16, Dept. of the Platte, 1879; do. 6, id., 1880; do. 34, Dept. of Texas, 1879. And compare Wheelden e. Wilson, 44 Maine, 11; Marx v. People, 63 Barb., 618; Fralich v. People, 65 id., 48; People v. McGungill, 41 Cal., 429; Clark v. State, 50 Ind., 514; Fitzpatrick v. U. S., 178 Ú. S., 304.

359 Albany Law Journal, 510.

or confinement an unusual period before trial; the fact that he has already been subjected to punishment or special discipline on account of his offence; the fact that his act was in a measure sanctioned by the act or practice of superior authority, &c. XXVIII, 104, August, 1868. 1302. The law presumes that public officers duly perform their official functions, and this presumption continues till the contrary is shown. 42, 246, August, 1890.

1303. Official communications between the heads of the departments of the Government and their subordinate officers are privileged. Were it otherwise it would be impossible for such superiors to administer effectually the public affairs with which they are entrusted. 52, 344, March, 1892.

1304. Where a witness for the prosecution was permitted by a courtmartial to temporarily suspend his testimony and leave the courtroom for the purpose of refreshing his memory as to certain dates, held that such action was irregular and the further testimony of the witness as to such dates inadmissible. By the course pursued the court and accused were prevented from knowing by what means the memory of the witness had been refreshed-whether, for instance, it may not have been refreshed by oral statements of some person or persons. 24, 284, May, 1888.

1305. A wife is not a competent witness to prove a charge of failing to support her, for which her husband is on trial. XLVII, 521, September, 1884.

1306. Where a conviction of rape rested mainly on the testimony of the victim, a child of eight years of age, held that the competency of the witness was doubtful, and that the trial should have been suspended and the child instructed.' L, 37, February, 1886.

1307. An insane person is no more competent as a witness before a court-martial than at common law. Testimony admitted of a person shown to be insane should be stricken out on motion made. 50, 270, November, 1891.

1308. Upon a trial of a cadet of the Military Academy, the court, against the objection of the accused, required another cadet, introduced as a witness for the prosecution, to testify as to facts which would tend to criminate him. Held that such action was erroneous, the not answering in such cases being a privilege of the witness only, who (whether or not objection were made) could refuse to testify, and who, if ignorant of his rights, should be instructed therein by the 38. 194, January, 1890.

court.

1 Greenleaf on Evidence, § 367.

2 That the accused cannot take advantage of the error, see Greenleaf on Evidence, 16th edition, vol. 1, § 469 d, p. 613.

2

1309. Copies of records of courts martial authenticated under the seal of the War Department, as provided by Sec. 882, Rev. Sts., are admissible in evidence "equally with the originals." LIV, 77, July, 1887. Similarly held with respect to such "patents, deeds or other conveyances or evidences of title," by which the United States holds lands, as are on file in the War Department. Cards 748, December, 1894; 1577, July, 1895.

1310. The enlistment paper, the physical examination paper and the outline card are original writings made by officers in the performance of duty and competent evidence of the facts recited therein. Copies, authenticated under the seal of the War Department, according to Sec. 882, Rev. Sts., are equally admissible with the originals.' 61, 218, August, 1893.

1311. Muster-in rolls are primary evidence of the dates of muster in as muster-out rolls are of the dates of muster-out. It is not the primary object of either muster-and-pay rolls or muster-out rolls to fix the date of muster-in. They cannot therefore be used to impeach the muster-in as fixed by the muster-in roll. Official records are of a high class of evidence as to the facts which are recorded in them pursuant to the special objects for which they are kept, but they have not this weight as evidence with reference to other facts incidentally recorded in them. Card 9421, December, 1900.

2

1312. War Department Orders of May 15, 1894, sec. XV, paragraph 2, provides that "official copies of orders and other papers shall be authenticated solely by an impressed seal of the Bureau issuing the same, e. g., ‘Adjutant-General's Office, Official Copy."" This provision was intended and should be construed to apply to copies of papers to be used in the administrative business of the War Department and not as evidence before courts, either civil or military. Copies so authenticated would not be admissible as evidence in civil courts. They would have to be authenticated as required by Sec. 882, Rev. Sts. In some cases copies of papers for use as evidence before courtsmartial have been authenticated in the manner specified in Sec. 882, but in the majority of cases they have been authenticated by the official stamp of the bureau in the manner stated above. In the absence of objection, copies so authenticated by the bureau stamp would be legally admissible before courts martial; and as courts martial are not bound to follow strictly the rules of evidence observed by the civil courts, the Secretary of War could legally provide by regulation that

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1Compare Evanston v. Gunn, 99 U. S., 660; Sandy White . U. S., 164 U. S., 100, 2 Greenleaf Ev., 16 Ed., vol. 1, §§ 491, 493. Am. & Eng. Ency. of Law, 1st Ed.. vol. 20, p. 513.

in court martial trials such copies would be admissible notwithstanding the objection of the accused.' Card 8471, June, 1900.

1313. The Morning Report Book is an original writing. To properly admit extracts in evidence, the book should be first identified by the proper custodian, and the extracts then not merely read to the court by the witness, but copied and the copies, properly verified, attached as exhibits to the record of the court. 61, 218, August, 1893.

1314. A descriptive list is but secondary evidence and not admissible to prove the facts recited therein. It is not a record of original entries, made by an officer under a duty imposed upon him by law or the custom of the service, but is simply a compilation of facts taken from other records. 61, 218, August, 1893.

1315. Copies of pay accounts (charged to have been duplicated) are admissible in evidence where the accused has by his own act placed the originals beyond the reach of process, and fails to produce them in court on proper notice. XLVII, 269, August, 1883. Similarly held, where the originals were in the hands of a person who had left the United States so that they could not be reached, on notice to the accused to produce them or otherwise. LVI, 604, September, 1888.

1316. To the admission in evidence of a letter written and signed by the accused (of which the introduction is contested), proof of his handwriting is necessary. 61, 218, August, 1893. Evidence of handwriting by comparison is not admissible at common law except where the standard of comparison is an acknowledged or proved genuine writing already in evidence in the case. A writing not in evidence and simply offered to be used as a standard is not admissible. XLIX, 566, December, 1885.

1317. At the trial, in 1894, of an officer charged with a disorder and breach of discipline which involved the killing by him of another officer, there was offered in evidence, on the part of the accused, to exhibit the character and disposition of the officer killed, a copy of a general court-martial order of 1872, setting forth certain charges alleging dishonest and unbecoming conduct, upon which the latter officer was then tried and convicted, and the findings of the court thereon. Held that such evidence was wholly inadmissible for the purpose designed. 65, 270, June, 1894.

1 In accordance with these views, the following regulation by the Secretary of War was published in G. O. 91, A. G. O., 1900: "Copies of any records or papers in the War Department or any of its bureaus, if authenticated by the impressed stamp of the bureau or office having custody of the originals (e. g., 'Adjutant General's Office, Official Copy'), may be admitted in evidence equally with the originals thereof before any court martial, court of inquiry, or in any administrative matter under the War Department." See Court-Mar. Manual (1901), p. 42, note 3.

EXAMINATION.

1318. Held that assistant surgeons of the rank of lieutenant were subject to examination under the act of October 1, 1890, c. 1241, "to provide for the examination of certain officers of the army and to regulate promotion therein."1 44, 374, December, 1890.

1319. Held that Secs. 1206 and 1208, Rev. Sts., relating to the examination of officers of the engineer and ordnance corps, were not repealed by the act of October 1, 1890, c. 1241, but remained fully in force.* 44, 88, November, 1890.

1320. Where an officer was sentenced "to retain his number on the lineal list of second lieutenants of infantry for three years," held that the sentence, while operative, rendered him ineligible for promotion under the act of October 1, 1890, and that his promotion pending the execution of the sentence would operate as a pardon. 47, 293, May.

1891.

1321. An enlisted man who has failed to pass a departmental board convened under G. O. 79, A. G. O., 1892, is not eligible for the final competitive examination authorized by the same order. Card 2422, July, 1896.

1322. Held that the construction given by General Orders 128, A. G. O., 1890, to the act of October 1, 1890, was correct. Card 3670, November, 1897.

1323. After the Secretary of War has approved the findings of an examining board and his action thereon has been communicated to the party examined, it is no longer revocable. Card 6671, June, 1899.

EXTRADITION.

1324. By Art. II of the extradition treaty with Mexico of Dec. 11, 1861, it is stipulated that: "In the case of crimes committed in the frontier States or Territories of the two contracting parties, requisitions may be made through their respective diplomatic agents, or through the chief civil authority of said States or Territories, or through such chief civil or judicial authority of the districts or counties bordering on the frontier as may for this purpose be duly authorized by the said chief civil authority of the said frontier States or Territories, or when, from any cause, the civil authority of such State or Territory shall be suspended, through the chief military officer in command of such State or Territory." So where a United States soldier charged with having committed a crime against the laws of Mexico was held in military custody within the State of Texas, advised, that as a

1See act of July 27, 1892 (27 Stats., 276).

2 See G. O. 128 of 1890, par. VIII.

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