The witness here requested the permission of the court to answer the question referred to in the protest just read. The caused made no objections. Whereupon the court was cleared, and decided to grant the request of the witness.
Court opened, &c.
WASHINGTON, D. C., December 26, 1862.
With all proper respect for the ruling of the court on Wednesday, refusing the accused the right to give in evidence the telegrams and messages he then offered, dated before and after the 29th of August (that is to say, from August 22 to September 1, 1862), he begs leave to enter on its proceedings this protest.
The accused is charged, amongst other things, with having disobeyed the several orders stated in the specifications of the 27th of August, 1862, 29th August, 1862 (4.30 p.m.), and 29th August, 1862 (8.50 p.m.), and the prosecution has endeavored to prove that such disobedience was by design, because of a fixed purpose on the part of the accused not only not to co-operate with the general in command in the existing campaign, but to fail in his duty in that regard.
With this view, certain papers, being a part of the same series of telegrams with those rejected, were offered by the judge-advocate, not objected to by the accused, when the purpose for which they were offered was stated, and received by the court.
And with the same object, the opinions of the witnesses Roberts and Smith, founded, as they said, on what they represent to be the manner and conversation of the accused, and also on what the first said he heard from another, that the accused would fail the commander-in-chief.
In the words of the judge-advocate, this evidence was produced to show the animus of the accused toward his chief, and in that aspect was admitted by the court. The accused respectfully maintains that if evidence of that description, for such a purpose, be admissible (as he concedes it is), it is equally admissible, and is his right, to show by his conduct just before, at, and after he came [under] the command of General Pope, by what he did and by what he said, orally or in writing, the asserted purpose - the alleged
animus - is wholly unsure; but that, on the contrary, his real purpose - his real animus - from the first to the last, was to do his whole duty to the utmost of his ability, and render his general and his country all the aid in his power.
If the prosecution had contented itself with exhibiting the orders in the specifications which he is said to have disobeyed, and in giving evidence of the fact of disobedience, the accused is advised that, even then, the proof which the court has ruled out should have been received. But when, not content with that course, it has attempted to prove his mental purpose - to fathom his mind - to show that from personal grudge to his general, or other cause, he designedly disobeyed such orders, he is advised that the evidence rejected is clearly admissible.
The general rules of evidence are the same in courts-martial as in other courts. They are based on principles of universal application, and which, as experience has demonstrated, are best calculated to ascertain the truth. One of these, as well settled as any known to the law, is that where a mental intent with which at act is done is in issue, the acts and declarations of the party a few days before, at, or a few days after the time when the intent is charged to have existed, bearing on such intent, may be given in evidence by either party. This is a
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