applicant's service, and if found to have been in fact honest and faithful, could authorize his enlistment. Cards 1197, April, 1895; 2423, July, 1896; 3131, April, 1897.

1268. Dishonorable discharge is prima facie evidence that service during the term of enlistment, which it terminated, was not honest and faithful. It is however within the discretion of the Secretary of War to determine for the purpose of enlistment whether such term was honest and faithful, and he may decide on the facts in a particular case that it was, even where there has been a dishonorable discharge. Cards 4406, 4419, June, 1898; 4465, 4601, 4667, July, 1898; 5339, November, 1898; 5675, April, 1899; 6477, August, 1899; 6727, June, 1899; 7070, September, 1899; 9039, September, 1900.

But, in general, service during a term of enlistment from which a soldier was dishonorably discharged, particularly with confinement at hard labor, is viewed as not honest and faithful. Cards 853, 1072,1097, 1588, January to July, 1895; 2496, 2769, August and November, 1896; 3068, 3170, 3722, April to December, 1897; 4668, 4748, 4783, July and August, 1898; 5643, January, 1899. Where a soldier in fact deserts, and his enlistment is terminated by a dishonorable discharge therefor pursuant to the sentence of a court martial, his service during such term ought not to be considered honest and faithful. Card 6570, June, 1899.

1269. The act of Aug. 1, 1894, applies to all enlistments for the army. Held, therefore, that the enlistment of an Indian must be for the term of three years. Card 249, August, 1894.

1270. The enlistment of an alien between 16 and 18 years of age, whose parents have never been in this country and are dead, not being a citizen or capable of declaring his intention to become one, is prohibited by the act of August 1, 1894. But all persons born in the United States and subject to the jurisdiction thereof are citizens.1 This includes minors born in the United States of alien parents. Cards 181, 804, August and December, 1894.

1271. Children of alien parents reaching their majority after their parents are naturalized are citizens, but it is otherwise if they reach their majority before their parents are naturalized. An alien minor can not declare his intention to become a citizen for the purpose of enlistment in the regular army. Cards 168, August, 1894: 5550, December, 1898; 6726, July, 1898.

1272. Under its constitutional power to raise and support armies, Congress can designate the classes of persons from which enlistments shall or shall not be made. This is done in the act approved August

71359-09-24

XIVth Amendment of the Constitution.

1, 1894, which, among other things, provides that no soldier shall be again enlisted in the army whose service during his last preceding enlistment has not been honest and faithful. If such service has not been honest and faithful, the soldier is ineligible for enlistment. The character of service rendered is a conclusion based upon a fact or facts. Military offences which the soldier may have committed, or of which he has been convicted may constitute these facts. A full pardon for such offences would relieve the soldier from further punishment for them, would in legal contemplation obliterate them as offences, but would not blot them out so far as they involved conceded accomplished acts or facts to be considered in determining whether the soldier's service had been honest and faithful. Held, therefore, where a soldier had been convicted of desertion, dishonorably discharged, and confined by sentence of a court-martial, that a full par⚫don would not affect the conceded unauthorized absence and violation of the oath of enlistment; that if these facts justified the conclusion that his service had not been honest and faithful he was ineligible for enlistment; and further that the pardon in restoring his rights of citizenship would not restore his eligibility for enlistment, as enlistment is not a right of citizenship.1 Cards 1765, 1883, October and November, 1895; 3125, April and June, 1897; 4513, 4645, July, 1898. 1273. Held, also, that a full pardon after conviction of a felony would not remove the ineligibility for enlistment, which such conviction constitutes under the provisions of Sec. 1118, Rev. Sts. The pardon releases the offender from all disabilities imposed by the offence and restores him to all his civil rights. In contemplation of law it so far blots out the offence that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. But the conviction of the felony remains an accomplished fact. This fact constitutes a statutory disqualification for enlistment; and as the privilege of enlisting in the army is not one of the legal rights of a person, a pardon of the felony after conviction cannot remove the ineligibility for enlistment created by the fact of conviction. 36, 262, November, 1889; Card 3125, June, 1897.

1274. A soldier was dishonorably discharged with confinement in a penitentiary by sentence of a court-martial, and pending the confinement, the unexecuted portion was remitted. Held, that he was not eligible for enlistment, his service during his last term not having been honest and faithful; and that the remission did not make him eligible. Card 1072, February, 1895.

1275. Where a discharged soldier whose service during his last term was not honest and faithful is again enlisted through false representa

'See opinion of Atty. Gen. of Feb. 9, 1898 (22 Opins., 36).

tions as to such term, held that such enlistment though in violation of the act of August 1, 1894, was not void, but voidable only at the option of the Government. Card 1512, July, 1895. So, where a soldier had been discharged without honor from the preceding term of enlistment and had by concealing this fact again enlisted, it was held that though the latter enlistment were viewed as both fraudulent and in violation of the act of August 1, 1894, the Secretary of War could cause him to be tried for the fraudulent enlistment, or summarily discharged therefor without honor, or to serve out the enlistment. 4077, April, 1898.

Card

1276. The act of August 1, 1894, prescribes that no person who is over 30 years of age shall in time of peace be enlisted for the first enlistment in the army. Held that an enlistment in the marine corps would not render a subsequent enlistment in the army a second enlistment under this act and thus remove the limitation as to age; service in the marine corps not being service in the army. Cards 1339, May, 1895; 2530, August, 1896; 3758, January, 1898.

1277. The act of August 1, 1894, is limited to "time of peace". Held, therefore, that the enlistment of four musicians formerly in the Spanish Army in Porto Rico, could, the war with Spain not having terminated, legally be authorized. Card 5148, October, 1898.

1278. The "last preceding term of enlistment" as used in sec. 2 of the act of August 1, 1894, is not limited to service in the regular army; it applies as well to service in the volunteer army. Cards 5840, 6203, March and April, 1899.

1279. The term of three months after honorable discharge within which a man may be re-enlisted under the act of August 1, 1894, begins on the day next following the day of discharge. Card 1084, March, 1895.

1280. The enlistment of an Indian prisoner of war terminates his status as such prisoner, and he cannot be returned to it on his discharge from the service. Cards 16, July, 1894; 1193, April, 1895.

1281. An enlistment in the United States army does not under any law of the United States operate as a discharge from the national guard of a State. Card 5753, January, 1899.

1282. The statute (act of March 3, 1899) which authorizes the enlistment of cooks in the army makes no limitation as to the race to which the persons so enlisted may belong. Held, therefore, that there was no legal objection to the enlistment as cooks of Japanese who are citizens of the United States. Card 6751, July, 1899.

1283. By the act of March 2, 1899, it is provided "that the limits of age for original enlistments in the army shall be eighteen and thirtyfive years." Held, that the fact that an applicant over thirty-five

years of age, and without prior service as an enlisted man, had served as an officer of volunteers, would not prevent his enlistment from being an original enlistment within the meaning of the statute. Card 6844, August, 1899.

1284. There is no statute that authorizes even the President to accept into or retain in the military service of the United States an individual soldier on a condition that he shall be sent to this or that part of the country to serve. A practice of entering into such agreements would soon prove impracticable and inconsistent with public policy and the interests of the service. Card 6731, July, 1899.

EVIDENCE.

1285. Courts-martial should in general of course follow- -so far as apposite to military cases-the rules of evidence observed by the civil courts, and especially the courts of the United States, in criminal cases. They are not bound, however, by any statute in this particular, and it is thus open to them, in the interest of justice, to apply these rules with more indulgence than the civil courts;-to allow, for example, more latitude in the introduction of testimony and in the examination and cross-examination of witnesses than is commonly permitted by the latter tribunals. In such particulars, as persons on trial by courts-martial are ordinarily not versed in legal science or practice, a liberal course should in general be pursued, and an over-technicality be avoided. XXIX, 480, December, 1869; XXXI, 273, March, 1871; XLII, 74, December, 1878; LV. 497. March, 1888; Card 8471, June, 1900.

1286. The rules of evidence should be applied by military courts irrespective of the rank of the person to be affected. Thus a witness for the prosecution, whatever be his rank or office, may always be asked on cross-examination, whether he has not expressed animosity toward the accused, as well as whether he has not on a previous occasion made a statement contradictory to or materially different from that embraced in his testimony. Such questions are admissible by the established law of evidence and imply no disrespect to the witness, nor can the witness properly decline to answer them on the ground that it is disrespectful

See 3 Greenl. Ev., § 476; Lebanon v. Heath, 47 N. Hamp., 359; People v. Van Allen, 55 N. York, 39; 2 Opins. At. Gen., 343; Grant . Gould, 2 H. Black., 87; 1 McArthur, 47; MeNaghten, 180; Harcourt, 76; DeHart, 334; O'Brien, 169; G. O. 51, Middle Dept., 1865; G. C. M. O. 60, Dept. of Texas, 1879; do. 3, 52, Dept. of the East, 1880.

2 Compare the views expressed in G. C. M. O. 32, War Dept., 1872; do. 23, Dept. of Texas, 1873; do. 60, Dept. of California, 1873. See also Court-Martial Manual (1901), par. 2, p. 42.

to him thus to attempt to discredit him. XXXII, 642, May, 1872; XLI, 33, October, 1877.

1287. The weight of evidence does not depend upon the number of the witnesses. A single witness, whose statements, manner, and appearance on the stand (see § 1365, post) are such as to commend him to credit and confidence, will sometimes properly outweigh several less acceptable and satisfactory witnesses. XXXV, 55, December,

1873.

2

1288. Evidence of the good character, record, and services of the accused as an officer or soldier is admissible in all military cases without distinction-in cases where the sentence is mandatory as well as those where it is discretionary-upon conviction. For, where such evidence cannot avail to affect the measure of punishment, it may yet form the basis of a recommendation by the members of the court, or induce favorable action by the reviewing officer whose approval is necessary to the execution of the sentence. XIX, 35, October, 1865; XXXVI, 446, 471, May, 1875. Where such evidence is introduced, the prosecution may offer counter testimony, but it is an established rule of evidence that the prosecution cannot attack the character of the accused till the latter has introduced evidence to sustain it, and has thus put it in issue. XXVIII, 593, May, 1869.

1289. Upon a trial where the offence is drunkenness or drunken conduct charged under Article 62, or drunkenness on duty charged under Article 38, it is not essential to confine the testimony to a description of the conduct and demeanor of the accused, but it is admissible to ask a witness directly if the accused "was drunk," or for a witness to state that the accused "was drunk," on the occasion or under the circumstances charged. Such a statement is not viewed by the authorities as of the class of expressions of opinion which are properly ruled out on objection unless given by experts, but as a mere statement of a matter of observation, palpable to persons in general, and so proper to be given.

See opinion of the Judge-Advocate General, as adopted by the President, in G. C. M. O. 66, Hdqrs. of Army, 1879; and compare remarks of reviewing officers, in G. O. 11, Dept. of California, 1865; G. C. M. O. 31, Dept. of Dakota, 1869; do. 8, Fourth Mil. Dist., 1867.

Compare Rudolph . Lane, 57 Ind., 115; McCrum e. Corby, 15 Kans., 117.

In commencing the examination of a witness, it is a leading of the witness, and objectionable, to read to him the charge and specification or specifications, since he is thus instructed as to the particulars in regard to which he is to testify and which he is expected to substantiate. So to read or state to him in substance the charge and ask him "what he knows about it," or in terms to that effect, is loose and objectionable, as encouraging irrelevant and hearsay testimony. The witness should simply be asked to state what was said and done on the occasion, &c. A witness should properly also be examined on specific interrogatories, and not be called upon to make a general statement in answer to a single general question. Compare G. O. 12, Dept. of the Missouri, 1862; do. 36 id., 1863; do. 29, Dept. of California, 1865; do. 67 Dept. of the South, 1874; G. C. M. O. 14, 24, Dept. of Dakota, 1877.