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77.
of Misnomer, No. 75, p. 905.
78. Plea of Pardon, No. 74, p. 905.
79. of Pregnancy, No. 76, p. 905.
80. Plans produced in Court, p. 906.

81. Witness if objected to, p. 906. = 9x

82.
83.

84.

85.

86.

87.

88.

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Insane Persons, Idiots, Lunatics, Incompetent, p. 907.
Children Competent if they understand Obligation of

an Oath, p. 907

.

Atheists Incompetent, p. 907.

Infamy of, renders Incompetent, p. 907.
Conspiracy of, renders Incompetent, p. 908.

Outlawry of, renders Incompetent, p. 908.

Proof of Judgment, thereof required, p. 908.

89. Reversal of Judgment, or Outlawry, restores Competency,

p. 908.

90. Benefit of Clergy restores, p. 909.

91. Pardon restores, p. 909.

92. What Interest does not disqualify, p. 910.

93. What Interest does disqualify, p. 910.

94. Co-Defendants, when competent for each other, p. 910.

95. Husband and Wife, not competent against each other, in cri

minal cases, p. 911.

96. Husband and Wife, not competent in favour of each other, p. 911.

97. Injured Party competent as a Witness in criminal Prosecution, p. 911.

98. Informers may be Witnesses in certain Cases, p. 911.

99. Interested Witnesses, how rendered competent, p. 912.

100. Examination of Witnesses in chief, P. 913.

101, Leading Questions not allowed in Examination in chief, P. 913. 102. Cross-examination of Witnesses, p. 914.

103. Cross-examination of Witnesses producing Papers, if sworn, p. 914.

104. Leading Questions may be put in Cross-examination, p. 914. 105. Witnesses not compellable to answer Questions tending to expose them to Penalties, p. 915.

106. Witnesses not compellable to answer irrelevant Questions, tending to degrade their Character, p. 915.

107. Credit of Witnesses impeached as to general Character, p. 916. 108. Proof of contradictory Statements made by Witnesses, p. 916. 109. Cross-examination, as to verbal contradictory Statements made

to third Persons, p. 916.

110. Cross-examination, as to written contradictory Statements of Witnesses, p. 917.

111 Cross-examination, as to Paper lost or destroyed, p. 918.

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112. Re-examination as to former Statements on Cross-examina

tion, p. 918.

113. Evidence in support of Character of Witness, p. 918. 8

114. A Party cannot discredit his own Witness, p. 919. 115. Public written Evidence of Record, p. 919.

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116. Private written Evidence of Record, p. 920.

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117. Private written Evidence, in the Possession of the Parties, or

of third Persons, p. 920..

118. Notice to produce Papers, p. 920.

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119. Notice to produce, when dispensed with, p. 920.

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120. Affidavits, p. 921.

121. Books of Merchants and Trades-people, p. 921.122. Certificates, p. 922.

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23

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123. Depositions. (See No. 28 to 31, p. 883 to p. 884.

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124. Gazettes, p. 922.

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Proceedings of an European (or Native) detachment (1), garrison (2), or regtl. (3) ct.-mar., (as the case may be), assembled at, on the day of 182-, by order of A. B. comg. the station, garrison or regt. for the trial of C. D., (here insert the prisoner's rank and regt.), and such other prisoners as may be brought before it.

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Barrackpoor, Monday, the day of, 182-. The court assembled this day at o'clock (4) in the forenoon for the trial of C. D., in obedience to regtl. orders of date, appointing the fol

lowing officers to compose the said court, viz.

President, Captain (5) E. F.

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(1) Consult. arts. 13 and 14, sec. xiv, p. 406, and art. 15, p. 407.200 201

(2) Consult., art. 12, sec xiv, p. 404.

(3) Consult., art. 10, sec. xiv, p. 396, and art. 11, p. 404.

1 (4) The court cannot assemble before six o'clock in the morning.Sed art. 7, sec. xiv, p. 376.)

(5) Or commissd. officer of eight years' standing. (See art, 16, sec, xly, p. 408.) (6) There may be only three members, if more cannot be conveniently assem

bled.

The court

:... 1. Court assembled, and Prisoner, brought into Courte having duly assembled (7), the president and members being all present in court, and the prosecutor (8) and witnesses (9) being present, the prisoner is called into court by name, and placed opposite to the president.

2. Read regtl Orders.] The president reads the regtl. orders, directing the court-martial to assemble (10).

3. Jurisdiction of the Court.] If the president should observe any thing incorrect as to the wording of the charges, or any omission as to names or dates, or that the crime is not one that is properly cognizable by a regtl. ct.-mar. (11), the president should adjourn the court, and report the circumstance to the comg. officer, with a view to the correc tion being made, or the omission supplied (12). If no difficulty of any such nature arises, then

4. Read over the Names of the Members of the Court to the Prisoner.) The president reads over to the prisoner the names of the members composing the court by which he is to be tried, desiring him to pay attention.

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5. The President is sworn.] The president is sworn by one of the members of the court as a matter of course (13).. ༧༢ ... ཉཱམཧཾ ཀ॰

6. Challenges not usual at Regtl. Cts.-mar.] According to G. O.C. C, 6th May, 1820 (14), the prisoner is not to be asked if he has any

... objection bled. (See art. 11, sec. xiv, p. 404.) If a native court, then insert the names of the subadars and jemadars, and the name of the superintending officer, and the interpreter, immediately under the names of the members of the court.

**(7) The president calls over the names of the members of the court, and they answer to their names, and take their seats; the senior member on the right, and the next senior to the left of the president, and so on with respect to the rest.

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(8) If the prosecutor be not in attendance, the court should wait a reasonable time, after which the president should adjourn the court, and report the cause to the comg, officer. (See par. 2, p. 674.)

(9) The witnesses should be all assembled in court, and admonished not to cons verse with each other upon the subject of the trial. If it be suspected to be neces sary, they should be kept separate.

(10) The adjt, attends with the regtl, orderly book, or with a copy of the order signed by himself, by order of the comg, officer. Praes

(11) See G. O. C. C. 22d Oct, 1813, No. 2, p. 396.

(12) If there be any material alteration made, or the prisoner should not have had due notice of the trial coming on, time should be given to the prisoner,➡(See case 2) P1.249.)

(13) He cannot be objected to as members are; but see more on this subject under the head of genl. cts.-mar. There is one valid objection (sce note 181, p. 46) which, or if any other arises, the court may act as pointed out in note 14.

i (14) The order (see p. 397) directs the prisoner being informed before the court, meets, and to state any objection he may have when the court has met; if he should state any objection the court should be closed, and the prisoner will then state his objection. The members objected to must not retire, as all the members must be present, or the act of the court would be illegal. They need not, however, say any thing, and may express a wish not to be a member. The prisoner, having stated his objection, is directed to be withdrawn, and the court take into their consideration what he hay said. If the court decide that the objection is a valid one, the member would be directed

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objection to make to any members of the court; therefore, the court is to be sworn in.

7. The Members of the Court sworn.] ~ The members are next sworn, usually by the four members standing up, and holding the New Testament with their right hand, and repeating the oath after the president (15); after which, they kiss the book, and then resume their

seats.

8. The Charges read to the Prisoner.] The president now desires the prisoner to attend, while the crime is read to him.

9. Prisoner asked if Guilty or not Guilty.] The president next addresses the prisoner:-"You have heard the charges which have just been read to you, and do you understand them?" If he answers in the affirmative,—“How say you, are you guilty or not guilty?" If the prisoner pleads guilty, he should be recommended to withdraw his plea, and to plead not guilty (16). If he pleads not guilty, "and this plea must be simple, and without qualification or justification" (18), the whole of the witnesses are directed to withdraw, and—

10. Plea recorded.] The president then records the prisoner's plea, and

11. Prosecutor makes his Statement.] The prosecutor makes his statement, if he has any thing to offer to the court with a view to explain the nature of the crime; but before he is sworn (19). This may either be done verbally, or by reading any paper he may have prepared for that purpose.

This paper is recorded upon the proceedings, not as evidence, but simply as his statement of the case, tending to inform and assist the court in their proceedings (20); after which

12.

to withdraw, and the court, if it is not reduced below the legal number, may proceed with the trial; otherwise they must adjourn, and report to the comg. officer, in order that other members may be appointed. In the Royal regt, of artillery, &e. challenges are not usually made.-(See more on this subject under the head genl. ct.marchallenges.)

(15) See No. 6, p. 410, and the oath, No. 2, p. 408.

(16) If he persists in pleading guilty, then there would be an end of the proceedings, and the court would have nothing to do but to record the plea. The objection of recommending the prisoner to plead not guilty is, because it is most favourable to him; and as Sir C. Morgan observed (17), “evidence must be heard of the fact or facts; or how can the crown, or the officer authorised to confirm a sentence, have any ground for extending mercy." Under any circumstances, the prisoner should be allowed to call witnesses as to his character.

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(18) Tytler, p. 239. If the prisoner pleads guilty as to part, and not guilty as to the rest, the court may either recommend him to plead not guilty generally, or record the admissions made by the prisoner.

(19) "If the prosecutor has any opening of his case to submit to the court, he should deliver that before he is sworn, after which he is to be sworn, and to give his testimony. This, however, is not to be understood as making it a necessary qualification for a prosecutor, that he should also be a witness."Sir C. Morgan's note, Tytler, p. 243.)

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(20) And the court are at liberty to require any part to be struck out which may

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12. 1st Witness for the Prosecution called in and examined in chief] The prosecutor now calls his witnesses, one by one, in such order as he may judge to be expedient. A witness (E. F.) is called into court by name, and he is duly sworn (21). It is not necessary to read the charges to the witness (22).

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The prosecutor puts such questions as he may deem necessary (23), but they must not be leading questions. Thus, the witness should not be asked, "Did you not see him go?" but the question should be, "did you see him go?" and without any emphasis. This is a better method, than the allowing a witness to give a long narrative, much of which may be quite immaterial, and will be certain to extend the proceedings; for as the prisoner has a clear right to cross-examine into all such matter, it is obvious that this must frequently be the case; and, in proportion to the number of witnesses, will this be the case.

It is therefore recommended, that reference be had to the usual proofs required in such case. Suppose, for instance, the charge beabsence without leave (24), then, by referring to the usual course pursued on such occasions, the questions to be put will be suggested at once. It is owing to this course of proceeding, that trials in courts of justice, in criminal cases, are so quickly terminated. The very words of the witness should be taken down (25). If they be unintelligible, they should be accompanied with an explanation. Thus, if any term be used which requires an explanation, there should be inserted (meaning so and so). The prosecutor having finished his examination in chief, the court record, "the prosecutor not having any further questions to put."-s

13. 1st Witness cross-examined by Prisoner.] The prisoner is first entitled to cross-examine the witness. The cross-examination, may extend

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E.. appear objectionable, as being acrimonious, or reflecting upon third persons, and those not being parties concerned. This statement may be sworn to by the prosecutor, and then received as evidence. by such parts as he can swear to being marked as such. This is sometimes done to save time.—(Sir J. Murray's Trial, p. 194.)

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If it be a written statement, the president keeps it and enters it as read, inserting it after the court adjourns,and preserving it with the original proceedings.

1 (21) See the several oaths at p. 412.

(22) Such is not the practice in courts of justice. Where they are read, the whole are not read to a witness who has only to give evidence to a part. In such cases only such part would be read.

(23) Questions are frequently prepared beforehand, and given in to the president upon slips of paper. This gives the president and court the opportunity of judging of their being legal questions, but the force of questions on a cross-examination must be diminished by this mode.

(24) See No. 4, p. 170.

(25) If the court take down the general tenor of the words, there may be an objection taken, by which the time of the court may be occupied when they should be examining another witness. If any alteration be made, the witness should be asked if that be his meaning, and the prisoner should be asked if he objects to the alteration made. He may insist on the very words being recorded; they may be very material to bis defence. (See objection to evidence, Chap. XXIII, No. 43, p. 889.)

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