241. Ield sufficient ground of challenge to a member of a court martial, that he has previously taken part in an investigation of the same case before a court of inquiry, though such court did not express a formal opinion. XXIII, 406, April, 1867. 242. Held good ground of challenge to a member of a court martial, in a case of alleged theft by a soldier, that such member had been a member of a board of survey which had investigated the case and fixed the misappropriation of the property upon the accused. XXXVI, 599, July, 1875. 243. Held that the members of a court martial who had composed a previous court by which the same accused had been tried for the same act though under a different charge, were all subject to be set aside on challenge. XXVIII, 181, October, 1868. 244. It is not necessary (though usual and proper) for a member to withdraw from the court room on being challenged and pending the deliberation on the objection. V, 99, October, 1863. 245. Courts should be liberal in passing upon challenges, but should not entertain an objection which is not specific, or allow one upon its mere assertion by the accused without proof, and in the absence of any admission on the part of the member. XXIV, 584, May, 1867; XXXVI, 578, July, 1875. A positive declaration by the challenged member to the effect that he has no prejudice or interest in the case, will, in general, in the absence of material evidence in support of the objection, justify the court in overruling it. XVII, 405, September, 1865. 246. Where, before arraignment, the accused (an officer), without having personal knowledge of the existence of a ground of challenge to a member, had credible information of its existence, held that he should properly have raised the objection before the members were sworn, and that the court was not in error in refusing to allow him to take it at a subsequent stage of the trial. XLI, 414, September, 1878. 247. The fact that a sufficient cause of challenge exists against a member but, through ignorance of his rights, is not taken advantage of by the accused, or if asserted is improperly overruled by the court, can affect in no manner the validity in law of the proceedings or sentence, though it may sometimes properly furnish occasion for a disapproval of the proceedings, &c., or a remission in whole or in part See G. C. M. O. 66, War Dept., 1875. The challenge, the allowance of which by the court in Gen. Twiggs' case was disapproved in G. O. 4, War Dept., 1858, was simply a general objection to the member by the accused on account of “ Some unpleasant circumstances growing out of their official relations;" no specific allega tion of bias being made, and the member himself expressly disclaiming any feeling of prejudice. of the sentence.1 VIII, 534, June, 1864; IX, 258, June, 1864; XX, 18, October, 1865; XXXVII, 315, 491, February and April, 1876; XXXIX, 240, October, 1877. 248. The Article imposes no limitation upon the exercise of the right of challenge other than that the challenge shall be for "cause stated,” and that more than one member shall not be challenged at a time. Thus while the panel, or the court as a whole, is not subject to challenge, yet all the members may be challenged provided they are challenged separately. XXVIII, 632, May, 1869; XXX, 361, May, 1870; XXXVIII, 53, January, 1876. The Article contains no authority for XXXV, 618, October, 1874. challenging the judge advocate. 249. The Court, of itself, cannot excuse a member, in the absence of a challenge. A member, not challenged, but considering himself disqualified, can be relieved only by application to the convening authority.* XXXVII, 34, September, 1875. 250. An accused challenged the entire court on the ground that the convening officer was "accuser." Held properly overruled: the array cannot be challenged at military law. The Article declares that the court shall not receive a challenge to more than one mem ber at a time." LIII, 225, April, 1887. 251. A court-martial cannot relieve or excuse" a member except upon a challenge duly interposed and sustained under this Article. The fact that a member has been absent from a session of the court, and has not heard the testimony meanwhile taken, constitutes no legal ground for excusing him by the court, provided such testimony is read to him and no objection to his continuing as a member in the case is interposed by the accused. LI, 540, Ebruary, 1887. 252. An accused objected to a member on the ground that some time. before he had had a disagreement with the member and thought that he See Opinion of the Attorney General of January 19, 1878 (15 Opins. 432), in which the opinion, expressed by the Judge-Advocate General in the most recent of the cases upon which this paragraph is based-that the fact that one of the charges upon which the accused was convicted was preferred by a member of the court who also testified as a witness on the trial (but who, though clearly subject to objection, was not challenged by the accused), could not affect the validity of the sentence of dinal after the saine had been duly confirmed—is concurred in by the Attorney tvene ral. And, to a similar effect, see Keyes r. United States, 15 Ct. Čls., 532. In tv. C. M. O. 88, Dept. of Dakota, 1878, the point is noticed that where a challen ze interposed by the accused has been improperly disallowed, a subsequent plea of galty is not to be treated as a waiver of the advantage to which he may be entitled by reason of the improper ruling. 0. 19. Dept. of Colo., 1896. The practice here indicated no longer obtains-see par. 4, p. 28, Manual for CourtsMart al (1901), which prescribes that "no member who has been absent during the *an dag of evidence shall thereafter take part in the trial;" but that "this provision sla i not be construed as invalidating the proceedings of courts martial when not med with and no objection is made, but is to be regarded as a requirement which should always be complied with when practicable.” "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. Id 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 homieide, 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, Ebruary 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, Febru ary, 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 See Manual for Courts-Martial (1901), note 1, 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 depositions taken and read in evidence." The court alone has no power to decide that a deposition, where legal and material, shall not be taken. June, 1891; Card 6739, July, 1899. 48, 39. 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, Fbruary, 1887. 269. The officer detailed to have a deposition taken, . ., to see to Where, however, the matter has been submitted to the court, it might in a proper case decide that oral testimony alone would answer. |