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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.

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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

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

'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.

"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.

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,1 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,2 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.3

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 "),

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

G. C. M. O. 25, War Dept., 1875.

Note the different reasons for this enactment assigned by Attorney General Speed (11 Opins. 137, 141), and Coppée (p. 50). And see, on this point, Hough (Practice), 377. This Article was repealed by act of March 2, 1901 (G. Ó. 27, A. G. Ö., 1901).

such proceeding must be held unauthorized and of no legal effect.1 And if the proceeding, thus futile, was one necessary to the completeness of the trial, or otherwise important, it should be repeated, or taken de novo, within legal hours. II, 123, March, 1863; VII, 433, April, 1864; XXIII, 627, August, 1867; XXXVI, 496, May, 1875. 44, 143, December, 1890.

282. The Article, however, does not require that the record shall show in terms that the hours indicated were observed. It is proper, indeed, and the best practcie, to state the hour of each meeting and adjournment; but where no such entry appears in the proceedings, the same will not be invalidated, but, in the absence of evidence to the contrary, it will be presumed, in favor of the record, that the court did not sit except between the prescribed hours. XXII, 635, March, 1867; XXIII, 627, August, 1867; XXX, 144, March, 1870.

283. The entertaining by the court, after three o'clock p. m., of a motion to adjourn would not be unauthorized, such a motion not being properly a proceeding of a trial in the sense of the Article. XXVIII, 189, October, 1868.

284. Where neither in the order convening a court-martial, nor in any supplementary order, is authority given for its sitting beyond or outside of the hours prescribed by this Article, and its record affirmatively shows that the trial or a portion of the trial of a case was not conducted within such hours, the proceedings had outside the prescribed hours, are unauthorized and inoperative, and the sentence, if any, is nullified, unless by a reconvening of the court the defect may be remedied. 44, 77, November, 1890. Thus, where it appeared from the record that a court martial, on a certain day, without any authority given it, completed a trial after 3 o'clock p. m., advised that the error might be corrected by continuing the trial anew, within legal hours, from the point reached at three o'clock on that day; and recommended that the court be reconvened for this purpose. 44, 143, December, 1890.

NINETY-FIFTH ARTICLE.

Members of a court-martial, in giving their votes, shall begin with the youngest in commission.

1 In some cases where the trials have, without express authority, been commenced before 8 a. m., or continued after 3 p. m., the entire proceedings and sentences have been disapproved as fatally defective. See G. O. 2, Dept. of the South, 1873; do. 94, Dept. of the Gulf, 1864; S. O. 281, Dept. of Washington, 1861. Strictly, however, it is only the proceeding had during the inhibited interval that is unauthorized and inoperative, and the irregularity involved may in general be remedied as indicated in the text. And see § 284, post. But see preceding note.

2 As to the presumption in favor of the regularity of judicial proceedings, see 1 Greenl. Ev., § 19; also § 2138, post, and note.

NINETY-SIXTH ARTICLE.

No person shall be sentenced to suffer death, except by the concurrence of twothirds of the members of a general court-martial, and in the cases herein expressly mentioned.

285. A sentence of death imposed by a court martial, upon a conviction of several distinct offences, will be authorized and legal if any one of such offences is made capitally punishable by the Articles of War, although the other offences may not be so punishable. III, 253, 276, 480, July and August, 1863.

286. A court martial, in imposing a death sentence, should not designate a time or place for its execution, such a designation not being within its province but pertaining to that of the reviewing authority. If it does so designate, this part of the sentence may be disregarded, and a different time or place fixed by the commanding general. III, 650, September, 1863.

287. Where a death sentence imposed by a court-martial has been directed by the proper authority to be executed on a particular day, and this day, owing to some exigency of the service, has gone by without the sentence being executed, it is competent for the same authority, or his proper superior, to name another day for the purpose, the time of its execution being an immaterial element of this punishment.' III, 650, September, 1863; V, 22, September, 1863.

NINETY-SEVENTH ARTICLE.

No person in the military service shall, under the sentence of a court martial, be punished by confinement in a penitentiary, unless the offence of which he may be convicted would, by some statute of the United States, or by some statute of the State, Territory, or District, in which such offence may be committed, or by the common law, as the same exists in such State, Territory, or District, subject such convict to such punishment.

288. This Article, by necessary implication, prohibits the imposition of confinement in a penitentiary as a punishment for offences of a purely or exclusively military character-such as desertion for exam

It was held by the Supreme Court in Coleman v. Tennessee (7 Otto, 509, 519-520), that a soldier who had been convicted of murder and sentenced to death by a general court martial in May, 1865, but the execution of whose sentence had been meanwhile deferred, by reason of his escape and the pendency of civil proceedings in his case, might at the date of the ruling (October Term, 1878) "be delivered up to the military authorities of the United States, to be dealt with as required by law." More recently (May, 1879, 16 Opins., 349), it has been held in this case by the Attorney General that the death sentence might legally be executed notwithstanding the fact that the soldier had meanwhile been discharged from the service; such discharge, while formally separating the party from the army, being viewed as not affecting his legal status as a military convict. But, in view of all the circumstances of the case, it was recommended that the sentence be commuted to imprisonment for life or a term of years.

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