CHAPTER CLXXIV. EVIDENCE GENERAL RULES. Sec. 3459. Generally. 3460. Rules of evidence. leaf's rule. Sec. 3468. Proof of enlistment. 3469. Documents-Telegrams. 3461. Rules of evidence - Green 3470. Degree of proof-Reasonable 3462. Agency and identity of ac cused. 3463. Proof of corpus delicti. 3464. Intent-Proof. 3465. Relevancy of evidence. doubt. 3471. Rank of officer-Effect on evi dence. 3472. Opinion evidence. 3473. Burden of proof. 3474. Burden of proof never shifts. 3466. Documentary evidence. 3467. Documents-Record of previous trial. 3475. Character-Proof as to. 3476. Impeachment of witness. § 3459. Generally. It is not within the scope of this work, under this particular heading, to give in detail all the rules of evidence applicable to trials by court-martial. In the nature of the case this would involve a repetition of a vast amount of material found in the preceding volumes of this work. This would necessarily involve the discussion anew of all such subjects as the relevancy of the evidence, its materiality and competency, the competency of witnesses and parties, presumptions and burden of proof, judicial notice, hearsay, res gestae admissions, documentary evidence and all other principles which form the basis of the admissibility of evidence in the trial of civil and criminal cases. It is the purpose herein to consider the rules that are particularly applicable and incident to courtmartial proceedings, leaving to the student and the practitioner alike the general rules and principles stated and illustrated throughout the body of this work. If any of these principles are repeated here it is for the purpose of showing their special application in the practice in these tribunals. § 3460. Rules of evidence.-The rules of evidence in courtmartial proceedings are not essentially different from those which obtain in the criminal courts generally throughout the United States and in England. Wherever there are any statutory regulations or provisions on the subject of courts-martial, or the evidence admissible on the trials in such courts, these must control. But in the absence of such statutory regulations the common law rules of evidence apply although not, perhaps, in all their strictness. The rule governing in such cases is that when a legislature creates a new court or a new judicature and fails to prescribe the rules of practice as to the admissibility of evidence, such courts will not be permitted to lapse by reason of such failure, but the common law will supply the rules sufficient and necessary for the practice in courts thus created. Hence, where there is any failure to prescribe the rules of evidence for trials in courts-martial, the rules of evidence then that prevail in the criminal courts of the country will be used as guides for the practice in these courts.1 § 3461. Rules of evidence-Greenleaf's rule.-The principle of the preceding section is recognized by both courts and law writers. So far as any rules of evidence have ever been applied in courtsmartial as a matter of practice the rules of the common law have been followed in so far as they have been applicable, and criminal procedure in its simplest form has always been regarded as the standard in these courts. Mr. Greenleaf states the rule both as to martial and military law thus: "The tribunals of both are alike bound by the common law of the land in regard to the rules of evidence, as well as other rules of law, so far as they are applicable to the manner of proceeding; but courts-martial, when administering the military law, having cognizance only of criminal offenses, are bound by the rules of evidence administered in criminal cases in the courts of common law; and therefore ought not to convict the prisoner until all reasonable doubt of his guilt is removed; allowing the presumption of innocence, in all cases, to operate in his favor; whereas, when taking cognizance, under martial law, of matters of merely civil conduct, such as the non-payment of debts, or the like, they are at liberty to decide according to the preponderance of testimony on either side." § 3462. Agency and identity of accused.-In making the chain of evidence which must bind and convict the accused it must be 1Simmon Courts-Martial 330; Benet Military Law and Courts-Martial 224; Grant v. Gould, 2 H. Bl. 69, 88; Ayde Courts-Martial 174; Mac- shown that he was the agent, in the commission of the offense; he must be identified as the person who committed the act. This is not regarded as difficult to establish where the accused is well known and the offense was committed in daylight. But where the accused is a stranger, or the offense was committed in the night-time, much difficulty in establishing the agency and the identity of the accused is sometimes experienced; but the law makes no allowance for these, or like difficulties, and satisfactory proof must be made of these distinct facts in order to justify a conviction. § 3463. Proof of corpus delicti.-The proof before a court-martial, as in other courts, must establish three propositions: (1) That the act stated in the charge and those, or some of them, as stated in the specifications which constitute the alleged offense, were actually committed; (2) that the accused is the identical person who alone, or with others, committed the offense; (3) that the accused committed the offense with the intent and purpose which bring it within the terms of the charge and the specification. It is a fundamental principle in all criminal proceedings that the body of the crime, the fact that the alleged offense was actually committed, must be established. by the proof. There can be no such thing as a conviction for a crime until the proof fully and fairly establishes the fact that such a crime has actually been committed. Whatever the charge and the specifications may be they constitute separate and distinct facts necessary to be established by the proof independently, in a sense, of the other fact that the accused was in any way connected with the alleged crime or offense. This rule is of such binding force that such proof is not dispensed with even in cases of confession by the accused, as the confession alone does not prove what is usually termed the corpus delicti.3 § 3464. Intent-Proof.-Ordinarily, a criminal intent is necessary in order to constitute crime. And, as a general rule, this intent must be proved. It has been said that crimes are divided into two classes with reference to the element of intent: (1) "Those in which a distinct and specific intent, independent of the mere act, is essential to constitute the offense." To this class belong murder, larceny, burglary, desertion and mutiny. (2) "Those in which the act is the principal feature, the existence of the wrongful intent being simply United States v. Searcey, 26 Fed. 435; 1 Winthrop Military Law & Pr. 474 n. inferable therefrom." In this class may be ranged arson, rape, perjury, disobedience of orders, drunkenness on duty, and neglect of duty; usually all breaches of military discipline belong to this class. In the first class of cases the intent must be proved as a separate and distinct fact. In the second class it is essential to prove the unlawful act only and the law then supplies the intent. In many cases in both classes the intent may be inferred from the proof of the act, under the principle that every person is presumed in law to have intended what he actually does. "When the proof shows that an unlawful act was done, the law presumes the intent, and proof of the act being a violation of law is proof of the intent." 994 § 3465. Relevancy of evidence.-Notwithstanding the simplicity of the practice and the liberality extended in the introduction of the evidence, a court-martial is bound by the rule that the evidence must be relevant. It cannot indulge in what is sometimes termed a dragnet process for the purpose of bringing in evidence of some kind to establish the fact that the accused at some time was guilty of some offense. The evidence should relate solely and distinctly to the charge. This rule does not, however, prohibit the introduction of collateral facts and circumstances which tend to establish the particular accusation. This principle is stated by Mr. Greenleaf as follows: "Thus the rule respecting the relevancy of evidence prohibits the courtmartial from receiving any evidence of matters not put in issue by the charge, or which would implicate the prisoner in a new or distinct offense, or in a degree or extent of guilt not appearing on the charge on which he is arraigned. This rule, however, does not forbid inquiry into circumstances which, though collateral, and not mentioned in the specifications, yet have a direct bearing on the matter charged." § 3466. Documentary evidence.—The production and introduction in evidence of documents in trials and proceedings before courtsmartial are governed by the same general rules as obtain in civil and criminal proceedings. They may be produced on a subpoena duces tecum issued by the judge-advocate; or by certified copies of records, papers and documents. And certified copies of muster rolls from 'United States v. Baldridge, 11 Fed. 552; 1 Winthrop Military Law & Pr. 475. 3 Greenleaf Ev., § 476; 1 Winthrop Military Law & Pr. 482. McClure Dig. Opinions, § 1296; the files of the war department are admissible in evidence." "General orders issued from the War Department or Headquarters of the Army may ordinarily be proved by printed official copies in the usual form. The court will in general properly take judicial notice of the printed order as genuine and correct. A court-martial, however, should not, in general, accept in evidence, if objected to, a printed or written special order, which has not been made public to the army, without some proof of its genuineness and official character." 298 § 3467. Documents-Record of previous trial.-It sometimes becomes important to make proof of the testimony introduced at a former trial. But it has been held that the record of such former trial is not admissible for this purpose. So the record of a board of investigation ordered in the same case cannot be admitted over the objection of the accused. Except in certain cases provided for by the articles of war, the testimony at a former hearing if desired must be introduced in the same manner as in the original case.' § 3468. Proof of enlistment.-As shown by a previous section the court must have jurisdiction of the person of the accused. Hence, the proof must show that the accused belongs to a class over which the court-martial has jurisdiction. It must show that he is an enlisted soldier or that he is such a civilian whose conduct for the time being is subject to military control. Proof that the accused is an enlisted soldier may be made by certified copies of the muster rolls from the records in the war department. This is regarded and held as sufficient evidence that the soldier was duly enlisted or mustered into the service and is, therefore, held as a soldier. But such certified copy of the record is subject to rebuttal by proof of fraud or illegality in the enlistment or muster, and the accused may show that he is entitled to a discharge.10 3469. Documents-Telegrams.-Courts-martial have experienced some difficulty and embarrassment in making proof of the sending or receiving of telegraphic messages. The rule has been established in these courts that the written or printed copy delivered by the company to the person to whom it was addressed is generally admissible 1 Winthrop Mil. Law & Pr. 499, et seq. 'McClure Dig. Opinions, § 1293. 8 McClure Dig. Opinions, § 1294. 'McClure Dig. Opinions, § 1291. 10 McClure Dig. Opinions, § 1293. |