230 THE TRIAL The forms how calculated to ensure fair play. Charges read. Prisoner arraigned. CHAPTER XV. OF THE TRIAL AND ITS INCIDENTS. 550. THE court having been sworn, the actual trial begins; (1) For a very interesting discussion of the comparative merits of the English "litigious" and the foreign "inquisitorial" criminal systems, see Stephen's Criminal Law of England, 153-168 (2) It was formerly the etiquette to address prisoners before military courts martial as prisoner; and the custom is still, it is believed, rigidly retained in the navy. objection to and reports, 551. Courts martial [§ 457] taking exception to a charge, Court, taking or the terms of it, before the arraignment of the prisoner, charge, adjourns must defer calling on him to plead, and adjourn, reporting the proceeding through the president to the officer by whom the court may have been convened. With the exception of mere clerical corrections [§ 389] the court has no authority to proceed with the trial on altered charges, unless their amendment has been sanctioned by the authority convening the court. having no amend the substance of authority to form or the charge. not guilty: 552. Whatever plea a prisoner may make, it is recorded PLEA. on the proceedings; he either pleads guilty or not guilty;- Guilty, or the plea must be express, simple and unqualified, as no exculpatory matter can, in this stage, be received; no special justification can be put in by way of plea; it would be to anticipate the defence:-or he stands mute, that is, makes none offered. no answer at all, or answers foreign to the purpose:—or instead of putting himself on his trial by a plea of not Special in bar. guilty, or acquiescing in its being recorded for him, he may offer certain pleas in bar of trial. (3) 553. A plea of guilty is in law a conclusive admission by Plea of guilty. the prisoner of his guilt, and further evidence is not required for the purpose of proving the charge, but in every case where a prisoner pleads guilty, a court martial is nevertheless enjoined to receive, and to report in their proceedings, such evidence as may afford a full knowledge of the circumstances. It is essential that the facts and particulars should be known to those whose duty it is to report on the case, or who have discretion in carrying the sentence into effect. (4) Formerly, if a prisoner pleaded guilty, the court, adopting the custom of common law courts, proceeded at once to pass sentence; this happened in the case of Lieutenant Kersteman, Royal Artillery, who was tried at Rosendaal, in 1814. (5) 554. A plea of guilty is held neither to preclude the pro- Prisoner duction on the part of the prisoner of evidence as to fact as guilty, may (3) As to objections to the charge, in the nature of pleas in abatement, see before, § 389. There is another plea (distinguished, in civil courts, as a demurrer); it admits the truth of the facts charged; but issue is joined upon some point of law, by which it may be insisted that the fact, as stated, is no mutiny, no dis obedience of orders, no conduct unbe- (4) Q.R.748. (5) G.0.333. See also G.0.338. pleading make a defence and crossexamine. Standing mute. well as character, nor to be a bar to his addressing the court. on his defence in extenuation of the offence or in mitigation of punishment. Upon the same principle, although an impression to the contrary has not been infrequent, a prisoner pleading guilty is not debarred from cross-examining the witnesses for the prosecution: a prisoner may plead guilty to the charge generally, and yet desire to alleviate the bearing of particular parts of the evidence brought against him, or to place his conduct, connected with such evidence, in a different point of view from that in which the examination in chief may have left it, and justice requires that he should enjoy this privilege. And besides this, a cross-examination may essentially tend to an elucidation of facts, and a knowledge of circumstances, to ascertain which, for the information of the confirming authority, is the express object of proceeding with the trial. 555. A prisoner who stands mute, does so, either obstinately, or by visitation of God. In either case, the court would act in the spirit of the regulation, above quoted, [§ 553] by entering a plea of "not guilty," and proceeding with the trial. Before this order, courts martial, on a prisoner's standing obstinately mute or refusing to plead, proceeded, as on a plea of guilt, to pass sentence. The trial of Assistant Surgeon Harrison, 17th Foot, at Ghazepoor, in 1816, supplies an instance: the court, in passing sentence, specially declared, that they had no alternative, considering the prisoner's determined and repeated refusal to plead, but to pronounce him guilty. (6) This custom of courts martial was grounded on that of common law courts; but it is now declared by statute, that if a prisoner refuse to plead, the court may, if it shall so think fit, order a plea of not guilty to be entered. (7) A court martial, therefore, in proceeding with the trial of a prisoner refusing to plead, would not only act in the spirit of the order as to pleas of guilt, but in conformity with the existing practice of common law courts. (8) 556. Pleas in bar of trial may be either-To the jurisdic (6) G.0.396. (7) 7 & 8 Geo. 4, c. 28, s. 2. (8) Should a prisoner stand mute by the visitation of God, though the court proceed to trial as if he had pleaded not guilty, yet it is a point undetermined, whether judgment of death can be given against one who had never pleaded, and who can say nothing in arrest of judgment.-4 Blackstone, 524, tion of the court, or-Special pleas in bar, as they are termed, SPECIAL PLEAS in which the prisoner sets before the court a reason why he should not be called on to answer to the charge. Pleas in bar of trial; are now re cognized in the 557. Until the issue of the last edition of the Queen's Regulations, the allowance of special pleas in bar of trial regulations. depended on the custom of the service, and there was no established rule for dealing with them. The course here detailed, which had been suggested in former editions of this work in the absence of an authoritative precedent, is now pointed out as that to be adopted. (9) If the special plea in bar of trial appears to be plausible, evidence, when necessary, is heard to the point; and if, on deliberation, the plea is allowed, the fact is recorded, the court adjourns, and the president submits the proceedings to the convening officer. If the plea in bar be valid, the court adjourns. Similar matter may be offered in his defence. jurisdiction: 558. A prisoner before a court martial, who omits to offer pleas in bar on his arraignment, is not deprived of the advantage he might have derived under them, by the want of form, as the court may remedy it by their sentence. 559. A prisoner, pleading to the jurisdiction, may aver Plen to the that he is no soldier, or not amenable to a court martial;— or a soldier, brought before an inferior court martial for a person: crime declared by the articles of war to be cognizable by a offence. court martial of superior jurisdiction, without authority having been extended to the inferior court;-or, arraigned by a court not legally constituted, either as to the authority by which it assembled, or as to the number and rank of its members ;-may for these, and similar causes, except to the jurisdiction of a court martial. It may also be pleaded in bar of trial, (or an objection may be taken to the warrant, which is the same in effect) that the offence charged has taken place more than three years before the issuing of the warrant for trial, unless the person accused, by reason of his having absented himself, or of some other manifest impediment, may not have been amenable to justice; in which case, the plea would be valid only, if time exceeding two years had elapsed from the period when the impediment may have ceased. (1) It appears from the remarks of the judge advocate and the proceedings of the court martial on Lieutenant Colonel George Johnston, 102nd Regiment, that, Time charged retrospection beyond the of court. SPECIAL PLEAS. though the facts in issue should be charged to have happened more than three years prior to the date of the warrant for the assembling of the court martial, yet that it is not the province of the court, no objection being taken to the warrant, to enquire as to the impediment in the outset, and before the prosecutor proceeds with the opening address. It would be to presume the illegality of the warrant; whereas the court should assume, that manifest impediment to earlier trial did exist, and leave the facts to be developed by witnesses in the ordinary course. (2) Former trial for the same offence. Previous punishment for offence charged, or, in case of a soldier, order of punishment, unless he appeal to a court martial. Previous punishment for offence charged; 560. A former acquittal or conviction of the same offence is obviously a valid bar to trial; (3) nor is there any exception as formerly, officers who have been acquitted or convicted by the civil magistrate being no longer triable by a court martial. (4) 561. Analogous to the defence of a former conviction is the plea, that the prisoner has been already punished for the same offence. This had always been allowed at courts martial, as respects both officers and soldiers, and it was expressly provided by the mutiny act, so long as it continued to specify the powers of commanding officers, (which, since 1860, have been conferred by the articles of war,)(5) that in the case of a soldier who had been guilty of any offence, which the commanding officer may not have thought necessary to bring before a court martial, and for which he had awarded any punishment he had authority to inflict, "that such soldier shall not be liable to be afterwards tried by a court martial for any offence for which he shall have been so punished, ordered to suffer imprisonment, punishment, or forfeiture." The cases where a soldier's pay is affected [§ 367], and he has a right to appeal to a court martial, instead of submitting to the summary award of the commanding officer, are an obvious exception. 562. On the trial of Captain G. J. Hallilay, 10th Foot, the court, the proceedings of which were approved and confirmed by the King, expressly "declined to proceed upon the investigation" of the fifth charge, as it appeared that the prisoner had already been "severely punished, by having been put into, and kept in, arrest, for the offence stated and alleged (2) Printed Trial, p. 11. (4) M.A.39. See § 33(5). |