in evidence in the absence of evidence or circumstances casting a reasonable doubt upon either its genuineness or correctness. This rule, however, cannot apply where it is necessary to prove that the telegram was duly sent but that it was not received or its receipt is denied. In such cases the fact must be proved by a competent witness.11 A telegraph operator may be required by subpoena duces tecum issued by the judge-advocate to appear before a court-martial and bring with him either the original or a copy of a certain telegraphic dispatch. But where the operator is a civilian the courtmartial has no power to compel him to surrender the telegram or a copy to be used in evidence.12 11 § 3470. Degree of proof-Reasonable doubt.-The rule as to the degree of proof and as to reasonable doubt is stated by Col. Winthrop as follows: "In a civil action the plaintiff needs in general but to make out a prima facie case, or to offer evidence materially preponderating over that of the defendant, to give him the verdict of judgment. But the quantity of the proof required (on the part of the prosecution) is considerably greater upon criminal trials, where there exists always in favor of the accused the presumption of innocencea presumption from which results the familiar rule of criminal evidence that, to authorize a conviction, the guilt of the accused must be established beyond a reasonable doubt. By 'reasonable doubt is intended not fanciful or ingenious doubt or conjecture, but substantial, honest, conscientious doubt, suggested by the material evidence in the case. 'It is,' as expressed by the court in a recent case, 'an honest, substantial misgiving, generated by insufficiency of proof. It is not a captious doubt, not a doubt suggested by the ingenuity of counsel and unwarranted by the testimony; nor is it a doubt born of a merciful inclination to permit the defendant to escape conviction, nor prompted by sympathy for him or those connected with him.' The meaning of the rule is that the proof must be such as to exclude, not every hypothesis or possibility of innocence, but any fair and rational hypothesis except that of guilt; what is required being not an absolute or mathematical but a 'moral certainty.' A court-martial which acquits because, upon the evidence, the accused may possibly be innocent falls as far short of appreciating the proper quantum of proof required in a criminal trial, as does a court which convicts. because the accused is probably guilty. However convincing the testi " McClure Dig. Opinions, § 1295. 12 McClure Dig. Opinions, § 1296. mony, it is nearly always possible that the accused may be innocent; on the other hand, though the probabilities may favor his guilt, a material and sensible doubt of the same may exist, of which he is entitled to the benefit. It is to be observed that the general rule indicated applies alike to each of the three main facts required to be made out upon a trial, in order to establish guilt, viz.-the corpus delicti, the identity of the accused with the real offender, and the requisite criminal animus. Each must be proved beyond a reasonable doubt."13 § 3471. Rank of officer-Effect on evidence.-An officer is not excused from testifying as a witness on account of rank. The rules of evidence in these military courts should be applied without regard to rank. And a ranking officer who testifies as a witness for the prosecution may be asked on cross-examination if he has not expressed animosity toward the accused. So he may be asked if he has not made statements out of court, contradictory to, or materially different from the testimony given at the trial. And the officer, as such witness, cannot refuse to answer on the grounds that questions which tend to discredit him are disrespectful.14 § 3472. Opinion evidence. The general rules as to expert evidence apply to proceedings and witnesses before courts-martial. The opinions of expert witnesses are competent and admissible when depending on knowledge of special branches of military science. But such opinions are not admissible on general questions of military science where the members of the court-martial are as competent to form the correct conclusions as the witness.15 § 3473. Burden of proof.—The rule as to the burden of proof is stated by Col. Winthrop as follows: "It is a general rule of evidence that 'the obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue.' And upon a criminal trial, where there stands at the threshold the presumption of the innocence of the accused, and the affirmative of the issue is thus necessarily asserted by the government, the burden is imposed upon the prosecution of proving the existence of every material fact required 131 Winthrop Mil. Law & Pr. 476. 14 McClure Dig. Opinions, § 1286, and note. 15 Gen. Whitelocke's Case, 2 MacArthur Ct. Mar. 147; Admiral Kep pel's Case, 2 McArthur Ct. Mar. 135; 3 Greenleaf Ev., § 478. As to employment of experts, see Smith, Matter of, 24 Ct. Cl. 209. to establish the offense charged. The onus probandi is not always. confined to the proof of a proposition affirmative in form. The gist of the offense may be criminal neglect, and here the prosecution is called upon to prove a negative. This more frequently occurs in military than in civil cases, several of the Articles of War making punishable in terms the not doing of some duty incidental to the military status, or the doing of some act without the authority of the proper superior. One or the other of these negative elements may be perceived in offenses designated in Articles 7, 15, 16, 17, 23, 31, 32, 33, 34, 35, 40, 60, 67, 69. But it is the general charge laid under Article 62 of neglect of duty, to the prejudice of good order and military discipline, that most conspicuously illustrates the frequency of the obligation to prove a negative which is imposed on the government in military cases. Yet the negative here is often but an affirmative in another form; the issue requiring the proving affirmatively of the commission of a specific act the doing of which is alleged to constitute the offense." 9916 § 3474. Burden of proof never shifts. The prosecution is always required to make out the offense charged. This burden never shifts to the accused. The accused may set up and present a defense which entitled him to an acquittal; this defense may be for him to establish; but the burden is not on him to make out this defense either by a preponderance or beyond a reasonable doubt. If by proof of his defense he raises a reasonable doubt as to the case made by the prosecution it is sufficient. This rule is stated by Col. Winthrop thus: "The burden of proof of guilt never shifts from the side of the prosecution. The accused may, indeed, admit the commission by him of the act charged, claiming that it did not constitute an offense on his part because of the existence of a certain fact which he sets up as a defense. Asserting this defense the burden is upon him to maintain it. But the onus of proving guilt remains with the state, and if the accused so far makes out his defense as to involve the main issue in a reasonable doubt, the prosecution must dispel this doubt by further evidence, in order to obtain a conviction."17 § 3475. Character-Proof as to.-Proof of character in military courts is in the main, governed by the same rules as in civil and criminal courts. Evidence of previous good character may be introduced 101 Winthrop Mil. Law & Pr. 485. 17 1 Winthrop Mil. Law & Pr. 485. by the accused as part of his defense. But this evidence, as in other cases, must be confined to the element of character involved in the charge. As sometimes stated it must be in some degree "apposite to the species of criminality charged." The effect of proof of character is usually to raise a reasonable doubt, on the improbability of a person of such good character committing the offense charged. It is most valuable in doubtful cases. In military cases proof of character is seldom offered as a defense; it is usually intended for the court or the reviewing officer to consider in mitigation of the punishment. For this purpose it is often presented in case of a plea of guilty. When thus offered it is not subject to the ordinary limitations as to time or the element of character involved in the charge. It "may exhibit the reputation or record of the accused in the service; for efficiency, fidelity, subordination, temperance, courage or any of the traits or habits that go to make the good officer or soldier. It need not be limited to general character, but may include particular acts of good conduct, bravery," etc. 18 § 3476. Impeachment of witness.-The general rules as to the impeachment of witness apply in courts-martial. A witness may be impeached, (1) by discrediting him on his cross-examination; (2) by proof of contradictory statements made out of court; (3) by proof showing that his general reputation for truth and veracity is bad.19 Before proof of contradictory statements can be offered, the witness must first be asked on cross-examination if he did not at a particular time and place make such a statement. In case of denial, the impeaching witness can, at the proper time, be introduced and state what the first witness said. But this evidence of the impeaching witness does not prove any fact; its only purpose is to impeach and discredit the first witness.20 § 3477. Depositions.-Depositions may be taken and read in evidence before courts-martial. The statute excludes depositions, however, in all capital cases; that is in all cases where the death penalty may be assessed. Depositions of only such witnesses as reside beyond the limits of the state, territory or district can be taken.21 Deposi 181 Winthrop Mil. Law & Pr. 533. 19 1 Winthrop Mil. Law & Pr. 526. Vol. II, Chap. 45. 201 Winthrop Mil. Law & Pr. 527, and notes; Hand v. Elvira, The, Gilp. (U. S.) 60, 11 Fed. Cas. No. 6015. 21 Article 91; McClure Dig. Opinions, § 256; Military Laws of U. S. (Davis) 744, 745. tions should now be taken before one of the military officers specified in the statute, or if he is not accessible then by a civil officer competent to administer oaths generally.22 The authority of the officer must sufficiently appear.23 It is given, as a recommendation at least, that the depositions of officers and public officials should be taken in proper cases where they are stationed at points distant from the place of trial. Nor should a high officer or civilian, such as the Secretary of War, be required to attend as a witness when the same facts can be proved by other, or where proof can be made by certified copies of records. The party taking the deposition must put it all in evidence; he cannot use the parts favorable to himself only; and if he declines to use it the adverse party may put it in evidence.25 "Acts July 27, 1892, § 4; McClure Dig. Opinions, §§ 264, 269. 23 2 Opinion Attorney-General 344; 19 Opinion Attorney-General 501; 27 U. S. Stat. at Large 278. 24 McClure Dig. Opinions, § 257. McClure Dig. Opinions, §§ 258, 259; Military Laws of U. S. (Davis) 744, n. 1. VOL. 4 ELLIOTT Ev.-48 |