Daily globe., 1883-07-31


10 O'Clock yesterday morning in its rooms
in the Mannheimer block, all the members
of the court present.
After the proceedings of Saturday were
read by the judge advocate, and approved
by the court and accused as correct, Col.
Ilges read his argument as follows:
Mr.. President and Gentlemen of the
Court. Before proceeding to the discus
sion of the evidence, I desire to briefly
note my objections to some of the rulings
of the court during the trial, not for the
purpose of any appeal to this court,
at this stage of the proceedings, but for
the purpose of presenting these objections
in a condensed form for the consideration
of the reviewing authorities:
In opposition to the Judgment of this
court, ] maintain:
First-That the challenge to Col. Lewis
G. Hunt, Fourteenth infantry, as mem
ber of this court, was for good cause and
should have been maintained. Col. Hunt
stated that he was a member of my former
court, and desired to be excused. In re-
gard to the suficiency of the explanation
made by Col. Hunt, the court ought to. have
considered that 1t was not denial, BAT in
some degree an admission of bias and
prejudice, unqualified by the members
opinion that it could not influence his
Judgment in the trial. De Hart says, (page
1907: How far an exception taken to a
member on the ground that he was a mem
Der of another court, in which the same mat
ters happened to be material, though not
directly in issue, and held either for the
same cause or upon the trial of another
action, might be considered valid, must
depend upon the circumstances under
which they arise. In this instance no cir
cumstances were inq uired into and no far
ther explanation made and the court
| passed its judgment upon the challenge in
| ignorance of the members own opinion as
| to his qualification. In the military court
more than in any other should every
avenue be closed whence may proceed the
| slightest misgiving that even in the forms
the accused may not have received his
| need of justice. A soldiers honor should
be secured and guarded by all the ways
| and means that the severest administra-
ton of the laws, either as to form or sub
| stance, can provide.
Second-That the challenge of Col. Chas.
| G. Gilbert, Seventeenth infantry, as a
member of this court was for good cause
and should have been sustained. In this
instance Col. Gilbert stood mute and no
explanations or declarations were elected
by the court, which passed its judgment
upon the challenge in ignorance of the
members own opinion as to his own quail
| ication. I submit the same remarks as ]
made in the case of Col. Hunt.
THE CERTIFIED COPIES.
Third-That the admission of the certi-
fed copies of August, November and De-
cember, 1882, pay accounts was an error
Some documents of public character NAV
be so proved, but this depends wholly upon
some statute or custom, which, for suffi-
cient reasons, makes certified copy equal
in law to the original. 1 can think of nc
case, however, except public records OF
| papers similarly situated where this is al
lowed. If the paper is simply of private
nature, such as letter, contract, pay.
ment, which has not yet become govern
ment property, or any similar instrument
a certified copy of it is never admissible
in evidence in any court where the usua
rules of evidence are recognized. I say
sis never admissible" advisedly because il
the original is not available, who is to GER
tify such paper? and under what au
thority? The certificate of any one, who
has seen and read it, and knows the con
tents of it, would be nothing but the mere
statement, without oath or accountability
of any kind. Such testimony is never al
| lowed under the circumstances. The
only way of proving paper o1
this nature under consideration, when the
| proper foundation has been laid by show
ing the loss of the original, or that it can.
not be produced, Is by swearing some wit
ness who has seen and read it, and car
swear to what its contents were, or who
can produce copy of it and swear that il
is a copy. But under all circumstances
in any such event of sworn testimony, the
fact of the loss of the original or inability
to produce the same, must be first shown
These rules arc so elementary that authori
| ty Is hardly necessary to support them
| but you will find the whole subject fully
| treated in first Greenleaf on Evidence
thirteenth edition, chapter ", beginning
at page lO4. In this instance, the intro
duction of certified copies was objected tc
| by me, which objection was not sustained
mporarilyIwaived my objection, observ
ing in explicit language that l reserved my
right of objection to later stage of pro.
ceeding. do now enter my solemn pro
test against the introduction of the certi
fed copies now under consideration, and
call your attention to the rule that an OBJ.
| lection cannot be said to be waived when
| jector has no power or urging.
Fourth-That the admission of the hear
say testimony of Maj. William Smith, pay
master Q. S. A., when recalled as a witness
! for the prosecution to relate conversa-
tion which he held with Gen. R. W. John
son of the retired list, q. S. A., was an
error, it having been objected to on good
| ground by me as being too general and it
being hearsay evidence and foreign to
the matter at issue.
HEARSAY TESTIMONY.
Fifth-That the admission of the hear
say testimony of Gen. R. W, johnson of
the retired list, .. S. A., was an error, it
having been objected to by me on good
ground as being hearsay evidence and
foreign to the matter at issue.
These are the five points which desire
to submit for the consideration of the re-
viewing authorities, they having been
passed upon adversely by this court while
sitting as judges of the law.
Now, Mr.. President and gentlemen of
the court, will address few words to
you as the jurors who are to determine,
according to evidence, the matter now