Where the pro

ings and his action thereon. I, 412, November, 1862. ceedings are to be forwarded to higher authority for final action on the sentence, a mere reference, as by the words "respectfully referred, or forwarded, to the President" (or other superior) "for action," &c., is incomplete and irregular. In such a case the original reviewing officer should state his approval, &c., in full and formal terms. IV, 337, November, 1863; VII, 132, February, 1864; Card 2844, January,

1897.

(1) That where the court is reassembled for the purpose of a revision of its proceedings in any particular, the record should formally recite all that is ordered and done as a new and independent chapter of the history of the case tried. The record of a revision will properly begin with setting forth a copy of the order re-convening the court, and will show that at least five members assembled, together with the judgeadvocate, and, where the correction required is such as to make it proper that he be present (see § 2252, post), the accused. The record will further show the action taken by the court, in making the correction or otherwise, under the order, and the proceeding will be finally authenticated by the signatures of the president and judge-advocate. I, 487, December, 1862; II, 97, March, 1863; IX, 653, September, 1864; XI, 93, 113, November, 1864; XV, 547, August, 1865; XVII, 402, and XIX, 135, October, 1865. Where the court decides upon making the correction, the same should be declared to be made in manner and form as determined upon and with the proper reference to the part of the original proceedings in which the error occurs. The error itself, however, is to be left as originally recorded; all corrections in the body of the record by erasure, interlineation, &c., being irregular and improper. XI, 93, supra; XVI, 202, May, 1865; 23, 345, April, 1888.

(m) It is the better practice that all the proceedings-even those that are irregular-which transpire in connection with a trial or at a revision should be set out in the record for the information of the reviewing authority. XXVI, 251, December, 1867. It is however not necessary to encumber a record by spreading upon it documents, or other writing or matter, excluded by the court. But the character of the writing and the grounds upon which it was ruled out should be specified. XLIX, 614, December, 1885.

2137. Among the minor points held by the Judge-Advocate General, in connection with the subject of the form of the record, are the following: That the several stages of the proceedings of the court should appear in the record in the proper order; thus, that the swearing of the court should not be recorded before the statement as to whether the accused objected to any of the members, &c. XI, 1,

October, 1864. That, in its statement of the opening of each day's session, the record may well mention, if such was the fact, that the proceedings of the previous day or session (if any were had in the same case) were read and approved. XXV, 349, February, 1868; XXXIV, 167, March, 1873. Such a reading however, though desirable as giving the court an opportunity to make corrections, is often not resorted to, and even where it is, is not always noted in the record.1 XXI, 679, November, 1866. That there is no legal objection to printing the record, or any part of it (such as the orders, charges and specifications, where numerous), provided of course the signatures of the president and judge-advocate are written by them in person. XIII, 384, February, 1865. That the record will conveniently and properly be endorsed on the outside, or cover, so that the name of the accused, and the court by which he was tried, with the time and place of trial, &c., will be apparent without opening and examining the proceedings. XXXI, 244, March, 1871.

2138. Unless it clearly appears to the contrary on the face of the record, it is in general to be presumed therefrom, not only that the court had jurisdiction in the case, but also that the proceedings were sufficiently regular to be valid in law. XII, 353, February, 1865.

2139. Where the proceedings of a court martial have regularly terminated, and the sentence has been confirmed and ordered to be executed by the proper and final reviewing authority, the fact that the record has since been lost does not impair or affect the judgment of the court, and constitutes no legal obstacle to the enforcement of the penalty. IX, 238, June, 1864. But where the record of the trial of a soldier who had pleaded not guilty, and in whose case considerable evidence had been introduced, was, by a casualty of war, lost before any action had been taken upon the sentence by the reviewing officer,

1 See Court-Mar. Manual (1901), p. 60, par. 2.

2 However desirable it may have been, in view of the numerous and serious defects frequently occurring in the records of courts martial during the war of the Rebellion, and in order to induce a greater precision and uniformity in the preparation of such records, to treat (as was not unfrequently done) the more grave of these defects as fatal to the validity of the proceedings or sentence, it is conceived that the same, in general, might properly have been regarded, and may now be regarded, as only calling for, or justifying, a disapproval of the proceedings. It is the effect of the ruling of the civil courts that where the court on any trial was legally constituted, had jurisdiction of the case, and has imposed a legal sentence or judgment, every reasonable intendment will be made in favor of the regularity of its proceedings, and even where the same are clearly irregular, the validity of the result will not be deemed to be affected, provided no statutory provision has been violated. See Hutton v. Blaine, 2 Sergt. & Rawle, 75, 79; Moore v. Houston, 3 id. 197; Trinity Church . Higgins, 4 Robt. 1; Edwards v. State, 47 Miss. 581. And it is further held that the regularity or validity of the minor details of the proceedings may be shown by evidence outside the record. Van Deusen v. Sweet, 51 N. York, 378. Similarlyit is believed-no omission or error in a record of court martial, not in contravention of express statute, should, as a general rule, be regarded as absolutely invalidating

held that, unless the court could be reconvened and a new record could be made out from extant original notes, the proceedings, inasmuch as they could not be intelligently reviewed or formally approved, should properly be considered as inoperative and the sentence of no effect. VI, 582, December, 1864.

Where the record of the trial of a deserter was destroyed by fire before it could be acted upon, and he was thereupon restored to duty, held, that the destruction of the record before action thereon had in the particular case, the legal effect of an acquittal and relieved the deserter from the forfeiture of pay due at date of desertion. 55, 181, August, 1892; 65, 338, June, 1894.

2140. The legal record of a court martial is that record which is finally approved and adopted by the court as a body, and authenticated by its president and judge-advocate. The court as a whole is responsible for the record; and the instrument which it approves as such is its record, however the same may have been made up. It is immaterial to the sufficiency of a record whether the same was kept or written by the judge-advocate or a clerk. So where a clerk or reporter, appointed and sworn to keep the record, did not act, but the record was prepared by the judge-advocate or some other person employed by him to assist him, held that this circumstance did not affect the validity of the record as finally approved by the court. XLIII, 346, June, 1880.

2141. The record of a trial by court martial should include a record of meetings where no business is transacted, together with a statement. of the reason why none was transacted. XLVIII, 209, January, 1884.

2142. It is not essential that the record of the court should show that the judge-advocate called the attention of the accused to the fact of his privilege of testifying in his own behalf. G. O. 75 of 1887

the proceedings where there remains enough in the record fairly to warrant the presumption that the legal requirements have been complied with, or where the reviewing authority can supply the defect from his own official knowledge, or from current orders or other satisfactory evidence readily available to him. Thus where no copy of the convening order accompanies the proceedings, but the reviewing authority, from the fact of having issued it himself or from the records of the command or otherwise, is officially apprised that the court was duly convened, the proceedings are not to be treated as fatally defective, but-the court appearing in fact to have been constituted and to have acted pursuant to the order,-may be regarded as valid in law though imperfectly recorded. Where indeed the record discloses in the proceedings of a general court martial, an irremediable defect in a vital particular, as the fact that the court was composed of but four members, the proceedings and sentence, if any, must be held inoperative, since the statute law-Art. 75-has fixed five members as the legal minimum for such a court. But where the defect occurs in a less material feature, or is one of form only, the same, while it may, if of a grave character, properly warrant a disapproval of the proceedings-in case it cannot be removed by a revision by the court on being reassembled for the purpose,—will not in general, it is held, justify the reviewing authority in pronouncing the proceedings to be void, or in treating them as necessarily without legal effect.

requires only that this be done "before the assembling of the court." 36, 185, October, 1889.

2143. The record of a court martial must show affirmatively whatever is made by statute, essential to its jurisdiction and the legality of its proceedings,' for example, that the members and judge-advocate were sworn as enjoined by the 84th and 85th Articles of War. So repeatedly held that if the record failed to show that the court and judge-advocate were sworn, and the omission could not be supplied by proceedings on revision, the sentence was void; but that if the court had not been dissolved, the original reviewing authority, or his successor in command, the record having been transmitted to him, either before or after his final action on the sentence, could legally reconvene the court to supply the omission in the record, if there was in fact an omission; the only purpose of such revision being to make the record conform to the actual facts, in other words to speak the truth. I, 487, December, 1862; II, 154, 155, April, 1863; IX, 653, September, 1864; XI, 93, November, 1864; XIX, 336, January, 1866.

2144. A mere clerical error in the spelling of the name of the accused, leaving it idem sonans, is not a case of misnomer and does not affect the validity of the proceedings as recorded. 25, 234, June, 1888.

2145. The record of a court of justice consists of two parts which may be denominated the substantive and the judicial portions. In the former-the substantive portion-the court records (makes a record of) or attests its own proceedings and acts. To this (record or attestation) unerring verity is attributed by the law, which will neither allow the record to be contradicted in these respects nor the facts thus recorded or attested, to be proved in any other way than by the production of the record itself or by copies proved to be true in the prescribed manner. The Supreme Court of the United States has repeatedly held that a court martial is a court possessing ample and exclusive jurisdiction to try and determine a certain class of cases, and that its functions are those of a court and its acts judicial proceedings, etc. These proceedings and acts are all recorded, and the record thus made is ultimately filed in its proper place as the record of the judicial proceedings had. Where therefore, after a record of a general court martial had been duly acted upon and the sentence (dismissal of an officer) executed, the dismissed officer filed affidavits to the effect that the testimony of one witness had not been made a part of the record (which in fact did not. show that any such witness testified) and asked that the sentence be set

1 Runkle r. U. S., 122, U. S., 543.

2 Best, Principles of Evidence, p. 578.

See Dynes . Hoover, 20 Howard, 65; Ex parte Reed, 100 U.S., 13; Smith r. Whitney, 116 id., 167; Johnson r. Sayre, 158 id., 109; Swaim v. U.S., 165 id., 561.

aside as void, it was held that the record could not be thus contradicted or impeached, or the validity of the sentence questioned.' Card 5654, May, 1899.

2146. It is required by army regulations, that reviewing officers shall state at the end of the proceedings in each case their decision and orders thereon, but there is no law requiring this of the President. His approval of the sentence of dismissal by court martial must be his personal act but the law does not prescribe the manner in which he shall communicate such action, and in the absence of such a provision, it would seem that he may legally communicate his action with reference to court martial cases by means of the ordinary court martial order. Thus where the record of a trial, involving dismissal of an officer, contained no entry of the action of the President, held that the order publishing the case and setting forth the action thereon of the President was sufficient and legal evidence of such action. 22, 436, February, 1888.

RECORD OF SERVICE.

2147. No official of the War Department, or other executive oficer, is empowered to change a record of fact-to so alter the official record of a soldier that it shall state that as a fact which is not a fact, whatever may be the equities of the case. It can not, for example, be made to appear on such a record that the soldier has been discharged, mustered out, reenlisted, or mustered in, when in fact he has not been. Congress alone can grant relief in such cases by authorizing such entries of record as would in effect accomplish the object sought—as it has indeed done in repeated instances. 35, 357, 393, and 36, 175, October, 1889; 40, 225, April, 1890; Card 8962, September, 1900. The general rule is that only erroneous records shall be amended, and the object of their amendment should be to make them state the truth (by correction by the person who made them or such entry thereon by

See the opinion of the Attorney General in this case, published in G. O. 21, A. G. O., 1900, the latter portion of which referring to the record of the court martial, reads as follows:

"The record is that which the court certify to have transpired on the trial, and embodies the action of the court. The fact that the court in due and legal form announces that it did so and so, or that so and so transpired, makes that the record and the fact, and no one except the court itself can lawfully alter that record. If it were to be held otherwise, there is not a record filed in the War office that could not be subject to attack by ex parte affidavits and that too at a time when the officers of the court might be dead or scattered to the ends of the earth and unable to defend the solemn certificate which they made; and all the judgments of courts martial as filed and acted on would be open to perpetual contradiction on subsequent assertions of interested parties which it would be impossible to meet or disprove."

2 See 2 Opins. At. Gen., 69; 7 id. 472; Williams v. U. S., 17 Peters, 152, in connection with Runkle v. U. S., 122 U. S., 543.