witnesses. a prisoner, previous to the trial, with the names and designa- List of the tion of the witnesses, by whose testimony any act objected against him is expected to be proved; and, on the other hand, that it was not requisite for the prisoner to furnish the judge advocate with the names of any other witnesses than those whom he wishes to be officially summoned. He thought such communication might possibly, in some instances, lead to inconvenience on either side. of the service 421. Unless there were some sufficient reason to justify Existing practice its being withheld, it would not be in accordance with the respecting existing practice of the service to refuse the prisoner a list of the witnesses for the prosecution. The custom is to give witnesses, it as a matter of course; and it prevents any suggestion of additional unfairness or surprise, when the names of any additional witnesses, who may be subsequently summoned, are also communicated to the prisoner. soldier. 422. In the case of a soldier, a list of the witnesses for in case of a the prosecution is usually added to the copy of the charge which is furnished to him when he receives notice of trial; at which time also he is asked [§ 416 (7)] what witnesses for the defence he wishes to be warned to attend the court martial. has a right to demand; nor 423. The prisoner has in no case the right to demand a Neither party list of the prosecutor's witnesses; and on a reference to the judge advocate general's office, an officiating judge advocate was strongly advised not to furnish the prosecutor with a list of witnesses for the defence, a request to that effect being unusual. is it usual for to request. the prosecutor tion that list should be prisoner as furnished to of right; 424. The court martial commission recommend: "9th, RecommendaThat in general courts martial the list of witnesses, together with the charges, be furnished to a prisoner as matter of right previous to trial, and that he should also have reasonable notice of any additional witnesses, whom in the course of the proceedings it may be desirable to adduce." (9) 425. On the assembling of the court, a list of all the usually laid witnesses on the part of the prosecution (§ 421) is ordinarily laid on the table. It is not, however, enjoined, nor will a deviation from this practice prevent the production of any witnesses whose names are not included in the list. (1) On (9) Second Reports, 14th May, 1869, practice to place the names of all witpage xi. nesses for the prosecution on the back of the indictment, but it does not pre (1) In criminal proceedings it is the on the table. on assembling. Abstract of evidence may be given to the prisoner before trial. Order directing the assembling of the court, the other hand the prosecutor is not bound to call all the witnesses on the list; but all the witnesses, whose names had been included in the list furnished to the prisoner, ought still to be present, unless notice has been given to the prisoner, because he might have relied on them for his defence. (2) 426. When an abstract of the evidence is prepared, it may be furnished to the prisoner. This was not permitted in Colonel Crawley's case; but it has since become the practice to give the abstract, when the prisoner makes application for it, especially in those cases where he has not been present [§ 365] at the preliminary investigation. (3) 427. Except when general courts martial are convened by special warrant, both general and district or garrison courts are assembled by an order of the officer duly authorized in that behalf, which is issued some time, and, except in case of emergency, not later than on the day preceding the assembly of the court. This order in the usual routine specifies the description of court, the purpose of its assembly, (4) and the name of the president (5) and either fixes the vent the prosecution from calling other (2) At "the Aldershot court mar- (3) See Evidence, Court Martial Commission:-H.R.H. the Duke of Cambridge. Q. 4287. Abstracts were given at the Fenian court martial in 1866. Mr. Mowbray. Q. 2847. In an admiralty circular of the 10th June, 1871, it is directed, "In order that no person may suffer injustice by pleading guilty to charges without being aware of the contents of the circumstantial letter (*) on which they are founded, the officiating judge advocate, in all cases where such letter is sent to the president, is, previous to the trial, to furnish the prisoner with a copy of it, as well as of the charges.-Signed, Vernon Lushington." (4) By G. O. dated Simla, 23rd June, 1838, His Excellency the Commander in Chief (Sir H. Fane), considering the practice which occasionally prevailed of mentioning in the order convening the court, the name of the individual to be arraigned, to be objectionable, is pleased to direct its discontinuance, and to direct that in future the order forming the court be framed generally for the trial of such prisoners as may be brought before it.-Asiatic Journal, xxvii, 304. (5) Where a court martial was assembled at a distant out-station and the president was to be furnished by that or another out-station, it had become usual, with the view of preventing the delay and inconvenience arising from an officer, appointed by name, being unable from illness or The "circumstantial letter" in the naval service takes the place of the summary of evidence" in the application for a military court martial, $384(5), "reporting fully and accurately in detail, and in the order of occur rence, the circumstances on which the charges are founded." time and place of meeting, and details the number and rank of officers for this duty according to the general roster, [§ 21] or otherwise leaves these details to be arranged by the officer in whose command the court may be directed to assemble. The order generally directs a return of the names and dates of commissions of the members to be forwarded to the adjutant general, or other staff officer, for the information of the judge advocate or president; and also at the discretion of the convening authority, details one or more "officers in waiting' to provide for and of officers in casualties or for the case of challenges being allowed. Detachment or regimental orders are in like manner regimental issued for the assembly of detachment and regimental courts martial, and in this last case all the officers to form the court are mentioned by name, equally with the president. waiting, courts martial. 428. Mr. Tytler has assumed that it is necessary to Detail of court, furnish the prisoner with a correct detail of the members not usually furnished to the prisoner; of the court martial; but except in so far as this information otherwise to perform the duty, to appoint the president in some such form as the following " PresidentA field officer (or as the case may be) who will be named by the officer commanding the troops at- ," thus leaving it open to him to name himself, or any other officer. This practice in orders. Detail of court, his power, it is not to be supposed that he would refuse the prisoner a copy, on his making a proper application to that effect; but in the every day practice of the service, the names often cannot be sent in sufficiently early to admit of any fixed rule. Convening 429. By an addition to the hundred and sixtieth article in 1868, it was provided that when it appears "to the officer convening a court martial, either before or after the assembling of the court, that it is desirable that the court or some (6) members thereof should have a view of any place in order to their better understanding the evidence that may be given upon the trial, such officer may direct the court, or so many members thereof as he shall think fit, to view such place." (6) The specification of "some members" and so many as he shall think fit" guards against vexatious objections, and enables the convening officer to order the members to have a view at different times, or to dispense with it in the case of those who already know the place. It also provides against delay in the case of other officers supplying the place of the members "appointed to serve on the court martial," who have been assembled (A.W.152), but have not taken the oath in consequence of challenge, illness, or other sufficient cause. It is not to be supposed that this provision can contemplate the deputation of a part of the court for the purpose of a view after the prisoner has been put upon his trial, not only because a distinction seems to be drawn between "the assembling of the court" and "the trial," but because the resort to any such expedient, unless very jealously guarded by express legislation, might easily lead to irregularities of a similar character to that which has been most justly characterised [$530] as "directly at variance with the practice of courts martial and the principles of justice," and calculated, as in the case referred to, to "render nugatory the sentence of the court martial." Obviously the court [§ 523] may be adjourned to the place, at any period of the trial, and any proceedings might properly take place in the presence of the prisoner. It is equally obvious that, in the event of the members only proceeding to a view, it would be their duty to reject any information of the nature of evidence which might be tendered in the absence of the prisoner. 179 CHAPTER XII. OF THE COURT AND ITS POWERS, PERSONS BEFORE THE COURT, 430. Ar courts martial the president is charged with the duty of conducting the trial, and with the maintenance of proper order; and not so much from his personal rank and seniority, as in virtue of presiding over a court of justice, and thereby exercising the power vested in it, he is called on to repress impropriety of conduct or language on the part of every person present at its proceedings. 431. At courts martial, other then general, the president acts in the place of judge advocate as to administering oaths, advising the court when necessary, transmitting proceedings, and summoning witnesses, when required thereto by the prosecutor or prisoner, but not in all respects; as he can neither interfere with the charge, nor with questions of evidence out of court, nor can he give an opinion, except in his judicial capacity, as to the wording and legality of the one, as the judge advocate may still have occasion to do, [§ 414] or as to the arrangement and sufficiency of the other, which, when he was not forbidden to take any part in the prosecution, [§ 472] was often required from the judge advocate. Such interference would be quite incompatible with the office of judge, and is forbidden by the most obvious dictates of justice. behaviour 432. The articles of war enjoin the members to behave Decent with decency; and in the case of their using intemperate of members. words, require the president to direct the same to be taken down in writing and reported to the officer ordering the court martial to assemble. (1) 433. No reproachful words are to be used to witnesses or prisoner, and the president is responsible that every Protection of prisoner, witnesses, &c. (1) A.W.162. |