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. I 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, 1-92; 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. Ild 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

1 See 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. XLII, 269, May, 1879.

NINETY-THIRD ARTICLE.

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

5

'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 r. State, 33 S. W. Rept., 1046.

2 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.

the sentence,' or for mitigating or partially remitting the punishment. XXII, 502, December 1866; XXXIII, 616, December, 1872; XXXIX, 13. May, 1876.

277. Where an accused soldier, by reason of his regiment having been moved a long distance since his arrest, was separated at his trial, from certain witnesses material to his defence, held, that he was entitled to a reasonable continuance for the purpose of procuring their attendance or their depositions. XXIV, 559, May, 1867.

278. That the charges and specifications upon which an accused is arraigned differ in a material particular from those contained in the copy served upon him before arraignment, may well constitute a sufficient ground for granting him additional time for the preparation of his defence. XXIV, 514, May, 1867.

279. Where after arraignment a material and substantial amendment is allowed by the court to be made by the judge advocate in a specification, the effect of which amendment is to necessitate or make desirable a further preparation for his defence on the part of the accused, a reasonable postponement for this purpose will in general properly be granted by the court. XXII, 58, April, 1866.

280. It is in general good ground for a reasonable continuance, that the accused needs time to procure the assistance of counsel, if it is made to appear that such counsel can probably be obtained within the time asked, and that the accused is not chargeable with remissness in not having already provided himself with counsel. XIII, 400, February, 1865.

NINETY-FOURTH ARTICLE.

Proceedings of trials shall be carried on only between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court, require immediate example.

281. This Article is imperative upon the point that no proceedings of trials shall be carried on before eight o'clock a. m. or after three o'clock p. m., except in the class of cases specifically indicated. Where, therefore, the record shows affirmatively that any particular material proceeding of the trial was had by the court before eight or after three o'clock, and sets forth no authority for the same from the convening officer (such as the usual direction or permission in the convening order, that the court "will," or "may, sit without regard to hours "),

1 See G. C. M. O, 35, War Dept., 1867; do. 128, Hdqrs, of Army, 1876; G. O. 24, Dept. of Arizona, 1874.

* 6. C. M. O. 25, War Dept., 1875.

Note the different reasons for this enactment assigned by Attorney General Seed (11 Opins, 137, 141), and Coppée (p. 50). And see, on this point, Hough (Prac

377. This Article was repealed by act of March 2, 1901 (G. Ö. 27, A. G. O., 1901).

232. The authority of the judge-advocate (under sec. 1202, Rev. Stats.) to issue "like process to compel witnesses to appear and testify which courts of criminal jurisdiction within the State, Territory, or district where such military courts may be ordered to sit, may lawfully issue," does not vest the court martial with power to punish a civilian witness for contempt who refuses to testify. XLIX, 306, August, 1885. 233. Where a contempt within the description of this Article has been committed, and the court deems it proper that the offender shall be punished, the proper course is to suspend the regular business, and after giving the party an opportunity to be heard, explain, &c.,1 to proceed-if the explanation is insufficient-to impose a punishment; resuming thereupon the original proceedings. The action taken is properly summary, a formal trial not being called for. Close confinement in quarters or in the guard house during the trial of the pending case, or forfeiture of a reasonable amount of pay, has been the more usual punishment. XXX, 361, 570, May and August, 1870.

EIGHTY-SEVENTH ARTICLE.

All members of a court-martial are to behave with decency and calmness.

EIGHTY-EIGHTH ARTICLE.

Members of a court-martial may be challenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time.

234. This Article authorizes the exercise of the right of challenge before all courts except field officers' courts and summary courts. These courts are not subject to be challenged, because, being composed of but one member, there is no authority provided which is competent to pass upon the validity of the challenge. XI, 210, December, 1864.

235. It is ordinarily a sufficient ground of challenge to a member that he is the author of the charges and is a material witness in the case. II, 584, June, 1863; XX, 18, October, 1865; XXXI, 210, March, 1871; XXXVII, 43, September, 1875; 315, February, 1876; XXXIX, 240, October, 1877. The mere fact that he is to be a witness is not in general to be held sufficient. II, 584, supra; XXXIII, 137, July, 1872.

1 See G. C. M. O. 37, Fourth Mil. Dist., 1868.

2 Instead of proceeding against a military person for a contempt in the mode contemplated by this Article, the alternative course may be pursued of bringing him to trial before a new court on a charge for a disorder under Art. 62. Compare Samuel, 634; Simmons, § 434. The latter course has not unfrequently been adopted in our practice.

3 Manual for Courts-Martial (1901), page 27, note 3.

236. The mere fact that a member signed or formally preferred the charges is not sufficient ground of objection, since he may have done so ministerially or by the order of a superior. IX, 258, June, 1864. But where a member, upon investigation or otherwise, has initiated or preferred the charges as accuser, or as prosecutor has caused them to be brought to trial, he is properly subject to challenge. XXXIII, 204. July, 1872; XXXVII, 315, February, 1876. Thus, that a member had originated and preferred the charge for a disobedience of his own order, was held good cause of challenge. XXXVI, 257, February, 1875. So, in a case of a trial for an assault upon an officer, the fact that the officer upon whom the assault was committed, and who was the prosecuting witness, was a member of the court, was held to constitute complete cause of challenge to him as member. XXXIII,

257, August, 1872.

237. That a member is the regimental or company commander of the accused does not, per se, constitute sufficient ground of challenge. But such ground may exist where the commander has preferred the charges, or where the relations between him and the accused have been such as to give rise to a presumption of prejudice. VII, 534, June, 1864: XXII, 631, March, 1867.

238. Where a member, before the trial, had expressed an opinion, based upon a knowledge of the facts, that the accused would be convicted whichever way he might plead, held that he had clearly prejudged the case, and that the court should have sustained an objection taken to him by the accused although, upon being challenged, he declared that he was without prejudice.' XXXVII, 491, April, 1876. 239. A member, on being challenged for prejudice, declared that he did not consider the accused (an officer) a gentleman, and would not associate with him, and that he had stated so; but he added at the same time that he was not prejudiced for or against him. Held, especially as one of the charges was "conduct unbecoming an officer and a gentleman." that the challenge was improperly overruled by the court. XXIV, 584, March, 1867.

240. It is not good ground of challenge to a member that he is junior in rank to the accused, nor is it sufficient ground that the member will gain a step or "file" in the line of promotion if the accused is dismissed. It is however a sufficient cause of challenge to a member, that, if the accused (an officer) be convicted and sentenced to be dismissed, the member will be forthwith entitled to promotion. XXXIII, 137, July, 1872; XXXVII, 189, December, 1875; XXXVIII, 366, 376, October and November, 1876; LV, 220, December, 1887.

1See G. C. M. O. 66, Hdqrs. of Army, 1879.