But after a court-martial has passed finally upon a matter of contempt, and imposed a specific punishment therefor, it is not, in the opinion of the author, empowered to remit, in whole or in part, the penalty awarded. The contempt, like any other military offence, is a crime against the United States; a fine imposed by way of punishment accrues to the United States ;3 and, as to an imprisonment or other punishment, the same, when once duly adjudged according to Art. 86, is, as to the matter of its execution, equally with a sentence imposed by the authority of any other article, beyond the control of the court. The power of remission, therefore, can be exercised only by the military commander authorized thereto by Art. 112,+ or by the President. 5

ant," (the publisher of a newspaper which had commented improperly upon the case,) cannot discharge himself by alleging that he meant no harm and did not suppose he was doing anything illegal." In People . Boughton, (where the contempt consisted in a personal altercation and exchange of blows between the counsel in open court,) the judge, notwithstanding the regrets expressed by both the offending parties, declined to abate the punishment-twenty-four hours in jail-and adjourned the court in order that it might be fully executed.

1. In a case, already cited, published in G. C. M. O. 36 of 1870, the court, after imposing the punishment of confinement, accepted an apology from the offender and remitted the punishment. Here indeed the confinement adjudged was "during the pleasure of the court." But this form of punishment, besides being objectionable as indefinite, is regarded as unauthorized since the term of a confinement adjudged for a military offence cannot be made to depend upon the will of the court. 2. U. S. v. Jacobi, Flippin, 108; In re Mullee, cited in note post.

3. Fanshawe v. Tracy, 4 Bissell, 498. And see Matter of Rhodes, 65 No. Ca. 518; Morris v. Whitehead, Id. 637; also Opins. of At. Gen. cited in second succeeding note.

4. Art. 112 authorizes, in general terms, officers ordering courtsmartial to "pardon or mitigate any punishment adjudged" by them, (certain special penalties only being excepted, which are reserved for the action of the President. )

5. It is held in In re Mullee, 7 Blatchford, 24, that, a contempt of a U.S. court, being an offence against the United States, the court cannot relieve or discharge the offender from the punishment imposed, but the President, as the pardoning power, can alone do so. And see III Opins. At. Gen. 622; IV Id. 458, where it is held that the pardoning power of the President extends to the remission of fines imposed for contempts by U. S. Courts. And see State v. Sauvinet, 24 La. An. 119, as to the similar authority of a State executive to pardon in cases of contempts of the State courts.

The court, however, may recommend the remission of the punishment by the proper authority. As was done in a case in G. C. M. O. 52, Dept. of Va., 1865, where a witness, who had been punished with confinement for drunkenness in court, appeared the next day and apologized.

CHAPTER XVIII.

EVIDENCE.

Courts-martial, which are bound in general to observe the fundamental rules of law and principles of justice observed and expounded by the civil judicature,' are also in general to be gov erned, upon trials, by the rules of evidence of the common law as recognized and followed by the criminal courts of the country.' Thus, indeed, it is laid down and repeated by the authorities on the subject; and inasmuch as the rules of evidence are in the main the result of the best wisdom and experience of the past. approved and ratified by modern intelligence, it is clear that mili

1. Tytler, 352; Kennedy, xiii; Prendergast, 208; Maltby, 1; Macomb, 80.

2. "Courts-martial, having cognizance only of criminal offences, are bound, in general, by the rules of evidence administered in criminal cases in the courts of common law; the only exceptions being those which are of necessity created by the nature of the service, and by the const:tution of the court, and its course of proceeding." 3 Greenl. Ev. $469, 476. "As no rules of evidence are specially prescribed by Congress for the observance of courts-martial, it must be deemed that such courts are contemplated to be governed, in general, by the same rules of evidence which govern the ordinary courts of criminal jurisprudence. These rules are supplied by the common law, excepting of course where otherwise provided by statute, in which case the latter prevail." Opinion of At. Gen. Brewster, in Whittaker's Case, March 17, 1882. And to a similar effect, see Grant z. Gould, 2 H. Black. 69, 87; Lebanon :. Heath, 47 N. H. 359; People v. Van Allen, 55 N. Y. 39; II Opins. At Gen., 344; 1 McArthur, 47; Warren, 8, 15; Harcourt, 76; Simmons SS11, 1006; Pipon & Col., 138; Hickman, 35; Kennedy, xii-xvi, 120; Griffiths, 65; Prendergast, 206; Maltby, 2; O'Brien, 109: De Hart, 334, 405; Benét, 224; G. O. 51, Middle Dept., 1865; Do. 36. Fifth Mil. Dist., 1868; G. C. M. O. 60, Dept. of Texas, 1879; Do. 3, 52, Dept. of the East, 1880; DIGEST, 253.

That the rules of evidence are substantially the same in the criminal: as in the civil procedure, see 1 Greenl. Ev. $65; Wills, 73; U. S. 2. Winchester, 2 McLean, 135; Brown v. Schock, 77 Pa. St. 471: G. 0. 4 of 1843.

tary tribunals cannot in general safely assume to reject or ignore them. But the essence of all military proceedings is summary and vigorous action, and, moreover, courts-martial are no part of the Judiciary of the United States, are not even courts in the full sense of the term, but are, in peace as well as in war, simply bodies of military men ordered to investigate accusations, arrive at facts, and-where just-recommend a punishment. In the absence, therefore, of statutory direction, they can scarcely be held bound to the same strict adherence to common-law rules as are the true courts of the United States; and, upon trials, they may properly be allowed to pursue a more liberal course in regard to the admission of testimony and the examination of witnesses than do, habitually, the civil tribunals. Their purpose is to do justice; and if the effect of a technical rule is found to be to exclude material facts or otherwise obstruct a full investigation, the rule may and should be departed from. Proper occasions, however, for such departures will be exceptional and unfrequent.

The subject of this Chapter will be presented under the separate heads of:-I. Proof in general; II. Admissibility of Evidence; III. Oral Testimony; IV. Written Testimony.

I. PROOF IN GENERAL.

Under this head will be noticed:-I. What is to be proved; II. How much is to be proved; III. What is to be presumed; IV. What is to be judicially taken notice of.

I. WHAT IS TO BE PROVED.

The Three Facts to be Established. Upon every criminal trial there are to be established three principal facts, viz.That the act charged as an offence was really committed; That

1. As the Court of Claims, for example, which, being a court of the United States, is held to be bound, in the absence of statutory provision on the subject, by the common-law rules of evidence. See the instructive opinion of Bradley J., in Moore z. U. S., 91 U. S. 270.

2. Grant . Gould, 2 H. Black. 104; Kennedy, 120; Tullock, 13; Bombay R. 19; Pratt, 198; Lieut. Col. Fremont's Trial, 239-40, 256. Courtsmartial had much better err on the side of liberality towards a prisoner than, by endeavoring to solve nice and technical refinements of the laws of evidence, assume the risk of injuriously denying him a proper latitude for defense." G. C. M. O. 32 of 1872. And, to a similar effect, see G. O. 104, Dept. of Dakota, 1871; Do. 23, Dept. of Texas, 1873; Do. 49, 60, Dept. of Cal., 1873; G. C. M. O. 60, Dept. of the Mo., 1874.

the accused committed it; That he committed it with the requisite criminal intent.

Proof of the commission. The corpus delicti1 so-called, or the fact that the alleged criminal act was committed-by some one,2 is, as a separate fact to be proved, especially illustrated in cases of homicide and larceny, and—at military law-in cases of offences under Arts. 5, 8, 13, 14, 17, 22, 26, 45, 46, 58 and 60. Here the fact that a person has been unlawfully killed, that property has been unlawfully appropriated, that a false return or muster has been made, that arms, clothing, &c., have been sold or through neglect lost, &c., that a mutiny has occurred, that a challenge has been sent, that the enemy has been relieved, that a fraudulent claim has been advanced, &c., is a distinct fact to be established independently of the fact of the agency of the accused. In the cases of another class of military offences, as desertion, cowardice, drunkenness on duty, sleeping on post, &c.. the agency of the accused is so connected with the act done that proof of the latter is also proof of the former.

Proof of the agency and identity of the accused. This, as an independent fact, is especially material to be clearly shown where the offence was committed secretly or in the night time, or where the accused was a stranger to the witnesses, or was one of a number of persons associated together or, (by reason of their similar dress or otherwise,) not readily distinguished from each other. 3

Proof of the intent. Crime, at common law, is made up of intent and act; the wrongfulness of the intent constituting

1. Proof of this first essential is not done away with by the fact that the accused has confessed the offence. In other words proof of a con fession does not prove the corpus delicti, but the latter must be independently proved before evidence of the confession can be admitted. 1 Greenl. Ev. § 217; G. O. 234, Fifth Mil. Dist., 1869; Do. 5, 48, Dept. of the Platte, 1871.

2. The term corpus delicti is sometimes referred to as including not only the criminal act but also the agency of the accused therein. See Whar ton, Cr. Ev. $325, 633. The definition of the text, (and see 3 Greenl. Ev. $ 30.) is, however, preferred.

3. See case in G. O. 1, Dept. of the Platte, 1871, in which the proceedings were disapproved because the proof did not sufficiently connect the accused with the offence.

the criminality of the act.

To complete the legal crime, an intent to effect the wrong and an act performed in pursuance of such intent must concur, and without this combination there can be no crime. And if the wrongful intent is present, the wrongful act committed is a complete crime, though it may not be the precise act had in view. Where the intent is shared in by several persons, as in conspiracy, mutiny, &c., every one who has contributed to the intent, and at the same time engaged in the act, is criminal, 3

In respect to the element of intent, crimes are distinguished as follows:-those in which a distinct and specific intent, independent of the mere act, is essential to constitute the offence; and those in which the act is the principal feature, the existence of the wrongful intent being simply inferable therefrom. Of the former are murder, larceny, burglary, desertion and mutiny; of the latter arson, rape, perjury, disobedience of orders, drunkenness on duty, neglect of duty. In cases of the former class the characteristic intent must be established affirmatively as a separate fact; in the latter class of cases it is only necessary to prove the unlawful act, for every man is presumed in law to have intended to do what he actually does, and the burden of proof is upon him to show the contrary. 5

Facts negativing intent. Under the head of the Defence," we have already considered certain facts and conditions, the effect of the proof of which is to negative the existence of the element of wrongful intent in alleged crime, or to show an incapacity to entertain such intent. These are such as Ignorance or mistake of fact, Ignorance of law, Drunkenness, Insanity, Compulsion by military orders or by hostile force, and Necessity of executing military discipline.

The subject of the intent will be further illustrated in consider

1. 3 Greenl. Ev. § 13; 1 Bishop, C. L. § 285-287.

2. 1 Bishop, C. L. § 327–329.

3. 1 Bishop, C. L, § 630, 636.

4. "Neglect in the discharge of a duty, or indifference to consequences, is in many cases equivalent to a specific criminal intention.' U. S. v. Thompson, 8 Sawyer, 122.

5. 3 Greenl. Ev. § 13, 14.

6. See Chapter XVII.