"might be prejudiced." The member declared that he was conscious of no prejudice whatever, but that, on the contrary, his feelings toward the accused were friendly. Held that the court erred in sustaining the challenge. LIII, 225, April, 1887. 253. The accused were Indian scouts charged with mutiny. Some of the members of the court, though disclaiming any prejudice against the accused personally, were aware that they were present at the outbreak, and were fully apprized, from their own personal presence or knowledge of the circumstances, that the mutiny, which had involved homicide, constituted a most aggravated offence of the class. Held that, as these members could scarcely avoid applying their impressions to the accused, when shown to be connected with the disorder, they would fairly have been subject to objection as triers. LV, 529, April, 1888. 254. A mere general opinion in regard to the impropriety of acts such as those charged against the accused, unaccompanied by any opinion as to his guilt or innocence on the charges, is not a sufficient ground of objection under this Article. 64, 174, March, 1894. 255. Under the custom of the service the Judge-Advocate may also challenge for cause. Card 2059, February, 1896. EIGHTY-NINTH ARTICLE. When a prisoner, arraigned before a general court-martial, from obstinacy and deliberate design, stands mute, or answers foreign to the purpose, the court may proceed to trial and judgment as if the prisoner had pleaded not guilty. NINETIETH ARTICLE. The judge-advocate, or some person deputed by him, or by the general or officer commanding the Army, detachment, or garrison, shall prosecute in the name of the United States, but when the prisoner has made his plea, he shall so far consider himself counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the prisoner the answer to which might tend to criminate himself. NINETY-FIRST ARTICLE. The depositions of witnesses residing beyond the limits of the State, Territory, or District in which any military court may be ordered to sit, if taken on reasonable notice to the opposite party and duly authenticated, may be read in evidence before such court in cases not capital. 256. A deposition cannot be read in evidence in a capital case (that is, in a case where the offence charged is punishable capitally)—as in a case of a violation of Art. 21, or a case of a spy, or one of desertion in time of war: otherwise in a case of desertion in time of peace. III, 485, August, 1863; IX, 646, September, 1864; XXXII, 6, June, 1871; XLII, 177, 361, February and July, 1879. Nor is the deposition admissible of a witness who resides in the State, &c., within which the court is held1 (XLII, 361, supra), except by consent of the parties.2 Card 1829, November, 1895. 257. Where the evidence of high officers or public officials-as a department commander, or chief of a bureau of the War Department— is required before a court martial, the same, especially if the court is assembled at a distant point, should be taken by deposition, if author ized under this Article. Such officers should not be required to leave their public duties to attend as witnesses, except where their depositions will not be admissible, and where the case is one of special importance and their testimony is essential. VII, 5, January, 1864. The Secretary of War should not be required to attend as a witness, or to give his deposition in a military case, where the chief of a staff corps or other officer, in whose bureau the evidence sought is matter of record, or who is personally acquainted with the facts desired to be proved, can attend or depose in his stead. XXXV, 505, July, 1874. 258. The party at whose instance a deposition has been taken, should not be permitted to introduce only such parts of the deposition as are favorable to him or as he may elect to use: he must offer the deposition in evidence as a whole or not offer it at all. XXXVI, 236, February, 1875. 259. If the party at whose instance a deposition has been taken decides not to put it in, it may be read in evidence by the other party. One party cannot withhold a deposition (duly taken and admissible under this Article) without the consent of the other. XXXVII, 9, February, 1875. 260. Held that the deposition of a witness residing in a foreign. country, and taken before a qualified person, as an American consul, would be admissible in evidence under this Article equally with the deposition of a resident of the United States. XLII, 114, January, 1879. 261. Where the judge-advocate offered in evidence, on the part of the prosecution, a deposition which proved to have been given by a person other than the one to whom the interrogatories were addressed, and the accused objected to its introduction, but the objection was overruled by the court, held error; the fact that the intended deponent was but the agent, in the transaction inquired about, of the person who actually furnished the deposition, not being sufficient to make such deposition admissible except by consent of parties. XLII, 140, January, 1879. Note the remarks of the reviewing authority in G. C. M. O. 102, Dept. of the East, 1871; do. 1, Division of South, 1875. 2See Manual for Courts-Martial (1901), note 1, p. 161. 3 See G. C. M. O. 9, Hdqrs. of Army, 1879. 16906-01-6 262. This Article, in any case within its terms and in which its conditions are complied with, entitles either party to have dépositions taken and "read in evidence." The court alone has no power to decide that a deposition, where legal and material, shall not be taken.1 48, 59, June, 1891; Card 6739, July, 1899. 263. A deposition, introduced by either party, which is not "duly authenticated," should not be admitted in evidence by the court, although the other party may not object. 34, 75, July, 1889. A deposition held irregular and inadmissible where it failed to show that the officer by whom it was taken was authorized to take it, or that he was qualified to administer the oath to the witness. 14, 285, January, 1887. 264. The Article, in specifying that the deposition, to be admissible in evidence, shall be "duly authenticated," makes it essential that the same shall be sworn to before, i. e. taken under an oath administered by, an official competent to administer oaths for such purpose. A deposition should now be sworn to before one of the military officers specified in the act of July 27, 1892, s. 4, or, if such an officer be not accessible, by a civil official competent to administer oaths in general. An official, empowered to administer oaths only for a certain special purpose or purposes, can not legally qualify a witness whose deposition is sought to be taken under this Article. 34, 75, July, 1889; 57, 61, December, 1892. 265. A court-martial has no power to qualify or authorize a commanding officer, or any other officer or person, to take a deposition or administer an oath. LV, 486, March, 1888. 266. A deposition is not in general satisfactory evidence for purposes of personal identification by description, and should not be resorted to for the identification of an accused where reliable oral testimony can be obtained. 60, 339, July, 1893. 267. The depositions of civilian witnesses, while their taking generally involves less expense than would the personal attendance of the parties, are usually quite sufficient as testimony, except when the purpose of the evidence is to personally identify the accused before the court. 64, 466, May, 1894. 268. Where a deposition, introduced by the prosecution, though legal, was incomplete, but the defect was waived by the accused, held that the prosecution was estopped from afterwards questioning it as competent evidence. LI, 560, February, 1887. 269. The officer detailed to have a deposition taken, . e., to see to 1 Where, however, the matter has been submitted to the court, it might in a proper case decide that oral testimony alone would answer. its being taken, should, before serving the subpoena, complete it, if necessary, by inserting the name and official designation of the notary (or other official having authority to administer the oath), before whom it is to be taken, and the date on which and the place where it is proposed to take it. And when the deposition has been duly taken, he should certify it as so taken, and transmit it in a sealed package to the president of the court. 65, 57, May, 1894. 270. Civilian witnesses who duly give their depositions under this Article are entitled to the same fees and allowances as are witnesses who duly attend the court in person.' The voucher, to enable such a witness to obtain his dues, should simply set forth the facts as to his service, substituting, for the usual statement in regard to attendance before the court, a statement that he duly attended as a witness at a certain time and place, and duly gave his deposition before a certain official named. 64, 336, April. 1894. 271. Held that a sum of three dollars, disbursed by an officer ordered to procure a deposition to be taken, as a payment to a justice. of the peace before whom the deposition was given, would legally be reimbursed, on the presentation of a proper voucher, by the quartermaster department, out of the appropriation for the expenses of witnesses before courts-martial. 64, 60, February, 1894. * * 272. A deposition duly taken, under the Article, on the part of the prosecution, is not subject to objection by the accused, and cannot be rejected by the court, merely upon the ground that it is declared in the VIth Amendment to the Constitution that—“in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him." This constitutional provision has no application to courts martial: the "criminal prosecutions" referred to are prosecutions in the U. S. civil courts. LII, 148, March, 1887; LV. 486–493, March, 1888; 44,351, December, 1890; 52, 204, February, 1892; 55, 493, October, 1892. 273. The provisions of Secs. 866–870, Rev. Sts., relate to depositions in the U. S. courts and have no application to courts martial which are no part of the U. S. judiciary. Held therefore that there was no authority whatever for prescribing, as was done in G. O. 2, Dept. of Texas, 1888, that the laws of Texas in regard to the taking of depositions should govern depositions in military courts held within that State. LV, 486, 586, March and May, 1888. NINETY-SECOND ARTICLE. All persons who give evidence before a court-martial shall be examined on oath, or affirmation, in the following form: "You swear (or affirm) that the evidence you 1See Circ. 9, A. G. O., 1883. shall give, in the case now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God."1 274. This Article does not prescribe by whom the oath shall be administered. By the custom of the service it is administered by the judge-advocate." When the judge advocate himself takes the witness stand, he is properly sworn by the president of the court. May, 1879. NINETY-THIRD ARTICLE. XLII, 269, A court-martial shall, for reasonable cause, grant a continuance to either party, for such time, and as often, as may appear to be just: Provided, That if the prisoner be in close confinement, the trial shall not be delayed for a period longer than sixty days. 275. The court should in all cases require that the desired evidence appear or be shown to be material, and not merely cumulative, and that to await its production will not delay the trial for an unreasonable period. It should also, in general, before granting the continuance, be assured that the absence of the witness is not owing to any neglect on the part of the applicant. This feature, however, will not be so much insisted upon in military as in civil cases." VIII, 662, July, 1864. 276. Where "reasonable cause" is, in the judgment of the court, exhibited, the party is entitled to some continuance under the Article. A refusal, indeed, by the court to grant such continuance will not invalidate the proceedings, but, if the accused has thus been prejudiced in his defence, may properly constitute good ground for disapproving 'That a witness testified without being sworn is not ground for new trial, when no objection was made at the trial and witness was cross-examined, see Moore v. State, 33 S. W. Rept., 1046. "See now sec. 4, act of July 27, 1892, which confers power to administer such oaths upon the judge-advocate. This Article prescribes a single specific form of oath to be taken by all witnesses. The Constitution, however (Art. I of Amendments), has provided that Congress shall make no law prohibiting the free exercise of religion. ` Where, therefore, the prescribed form is not in accordance with the religious tenets of a witness, he should be permitted to be sworn according to the ceremonies of his own faith or as he may deem binding on his conscience. See 1 Greenl. Ev., § 371; O'Brien, 260. A witness who has once been sworn and has testified, is not required to be re-sworn on being subsequently recalled to the stand by either party. In practice he is usually reminded that he is still under oath. The re-swearing, however, of such a witness will not affect the validity of the proceedings or sentence. 3 Compare People v. Thompson, 4 Cal., 239; Parker v. State, 55 Miss., 414. 'See par. 2, Postponement," page 30, Manual for Courts-Martial. It is not, however, the practice of courts-martial to admit counter affidavits from the opposite party as to what the absent witness would testify. As to the civil practice, see Williams v. State, 6 Nebraska, 334. 5 A military accused can not be charged with laches in not procuring the attendance at his trial of a witness who is prevented from being present by superior military authority. Thus in a case in G. O. 63, Dept. of Dakota, 1872, an accused soldier was held entitled to a continuance till the return of material witnesses then absent on an Indian expedition. |