OpenJurist

518

FEDERAL

their lands for grazing purposes, or, at least, that if it does consent'no penalty attaches; and, if the tribe may so consent, it may express such consent in writing, and for at least any brief and reasonable time. It was said by counsel for the government that if a lease for five years can be sustained, so may one for 999 years, and thus the Indian tribe be actually dispossessed of its lands. But, as was stated in the opening of the opinion, the question here is not as to the validity , of a lease, long or short, but as to whether this penal statute reaohes to the mere inducing or negotiating of the lease. For the reasons I have thus given, it seems to me that it cannot be so interpreted; and whatever may be 'the fact as to the validity of such a lease, and entering into no discussion as to how far it is binding on the Indian nation, or whether it could he set aside at the option of the nation or by the action of the national government, I am of the opinion that the acts charged upon the defendant are not within the scope ' of this penal statute. Therefore the demurrer to the petition must be sustained, and judgment entered for the defendant.

In re

DAVISON.

(Circuit (Jourt, 8. D. N6'IJJ York.

September 17, 1884.)

1.

CoURTS-MARTIAL-THEIR POWERS AS COMPARED WITH TH08lil OF ()IVrL CoURTS.

Courts-marLial are lawful tribunals existing by the same authority as civil courts of the United States, have the same plenary jurisdiction in offenses by the law military, as the latter courts have in controversies within their cognizance, and in their special and more limited sphere are entitled to as untrammeied an exercise of their powers. Everyone connected with the military or naval ,service of the United States is amenable to the jurisdiction which congress has created for their government, and while thus serving surrenders his right to be tried by the civil courts.
COUR1'S,

2.

SAME-AMENABILITY OF SOLDIERS AND SAILORS TO THEIR JURISDIOTION.

B. SAME-WITHIN THE SCOPE OF THEIR JURISDICTION NOT REVIEWABLE BY CIVIL

Provided a court-martial has jurisdiction to hear and determine and, to render the particular judgment or sentence imposed, however erroneous the proceedings may be, they cannot be reviewed collaterally upon habeas corpus. 4.
SAME-PRISONER PROPERLY BEFORE THEM HAS NOT BENEFIT OF WRIT OF HABEAS OORPUs.

A party legally in custody, trial by court-martial, (and he is , in if the offense. ill one of which that tribunal has jurisdiction,) cannot avail himself of a United States civil court in a habeaa eorpusproceeding. '
' ,"

5.

SAME-STATUTORY LIMITATION.

and not for a civil court of the United States, to decide whether the statutory lip:titation contained in the l03d article of war can be invoked by party of desertion to protect him frQIIl punishment. '

It is for

a

'IN BE DAVISON.

619

... ,

6. SAME--PARTY IMPROPERLY ENLISTED-POWER OF SUCH CotmTll·. ,:: If an alleged deserter was not ever duly enlisted in the United States aerv-

ice, he is not amenable to the jurisdiction of a court-martial.

1.

:MINORITY OF SOLDIER-EFFECT OF HEV. ST.

The effect of sections 1116, 1117, and 1118 of the Revised Statutes is that the contract of enlistment of a minor under 16 years of age is void; but that over that age it is valid, in the absence of fraud or duress as to him; but during biB minority it is invalid at the election of his parents or guardians.

Appeal from District Court.

See S.C. 4 FED. REP. 507.

Asa Bird Gardner, for the United States, appellant. Henry Grasse, for relator, respondent.

WALLACE, J. This appeal is brought to review the decision of the district judge for the Southern district of New York, discharging, upon a habeas corpns, the petitioner, D,d.vison, from the custody of Capt. Wood, of the first regiment United States artillery, commandant of the post of Fort Columbus. It appears by the record that Davison enlisted in the army of the United States in July, 1870, for the term of five years;, deserted while on furlough in February, 1872; was arrested as a deserter, and brought to Fort Columbus in October, 1880, and was held in the custody of the respondent to await trial by general court-martial at the time the writ issued. It further appears that the petitioner was but 19 years of age when he e,nlisted; that he had 8i mother living and dependent upon him for support, who never consented to his enlistment; and that during the entire period between the petitioner's desertion and apprehension he was within the city of New York. The petitioner's discharge was claimed on two grounds: First, that his contract oC enlistment was void, and therefore he could not be held as a deserter; and, secondly, that if he was a deserter he was not amenable to trial, because more than two years had elapsed lfince the commission of the alleged offense. The learned district judge, in the opinion delivered by him, placed the petitioner's right to a discharge on the second ground. Article of war 103 (Rev. St. § 1342) declares tha.t "no person shall be liable to be tried and punished by a.genera.l court-martial for any offense which appears to have been committed more than two years before the issuing of the order for such trial, unless by reason of having absented himself, or of some other manifest impediment, he shall not have been amenable to justice within that period." The district judge reached the conclusion that the offense of desertion was complete when the original act of desertion took place; that it was not to be deemed a continuing offense; and that the facts of the petitioner's desertion more than two years before his apprehension, and of his continued presence within the United States, being undisputed, he could not be tried or punished by court-martial, and should therefore be released from custody. Upon this'appeal a very elaborate argument has been m.adebY the counsel for the military authorities to show that the statutory limitation of article 103 IS not intended to apply to Ule offense of deser-

'620

FEDERAL REPORTE&

tion; and if, as would seem to be plain, the offense is a continuous one,-that ie, is repeated completely every hour and every moment the soldier willfully absents himself without leave animus non revertendi,---there is certainly fair room to contend that the two years do not begin to run ul}til he returns or is apprehended. On the other hand, if this construction of article 103 should obtain, it would appear that congress, while intending to shield the deserter from punishment for the original desertion, and possibly for his persistent contumacy during a long period of years, intended to subject him to punishment for remaining in a state of desertion during the two years last preceding his voluntary return to service or his apprehension. Such a construction might lead to the singularly arbitrary and apparently useless result of punishing a deserter in bis extreme old age, when his return to military duty would be useless and farcical, while exempting him from criminal accountability for the flagrant offense' originally committed. The conclusions which have been reached, however, render it unnecessary and possibly inappropriate to adjudicate here the question thus suggested. It must be held that it is for the court·martial and not for this court to. decide whether the statutory limitation can be invoked effectually by the accused to protect him from punishment. If the petitioner was legally in custody awaiting trial by court-martial for a military offense, this proceeding must fail. He was 'legally in custodyif the offense is one of which that tribunal has jurisdiction. It is not the office of a writ of habeas corpus to anticipate the action of the appropriate tribunal by determining, in advance of its investigation and judgment, whether the accused is innocent or guilty of the offense for which be is held for trial, any more than it is to perform the functions of a writ of error after a trial has been lad. Courtsmartial are lawful tribunals existing by the same authority that this court is created by, have as plenary jurisdiction over offenses by the law military as this court has over the controversies committed to its cognizance, and within their special and more lim.ited sphere are entitled to as untrammeled an exercise of their powers. As is said in Ex parte Milligan, 4 Wall. 123: "The discipline necessary to the efficacy of the army and navy required other and swifter modes of trial than are fllrnishedby the common-law courts; and, in pursuance of the power conferred by the constitution, congress has declared the kinds of trial, and the manner in wbich they shall be conducted, for offenses committed while the party is in the military or naval service. Everyone connected with these branches of service is amenable to the jurisdiction which congress has created for their government, and while thus serving surrenders his right to be tried by the civil court-s." The question of the jurisdiction of a. general court-martial may always be inquired into upon the application of any party aggrieved by its proceedings, and so may that of every other judicial tribunal;

IN RE DAVISON.

621

but the range and scope of the inquiry is' controlled by the satner1iles and limitations' in both There must be jurisdiction to hear and determine, to render the particular judgment or sentence imposed. If exists, however erroneous the proceedings may be, they cannot be reviewed collaterally upon habeas corpus. Ex parte Keamey, 7 Wheat. 38; Exparte Watkins, 3 Pit. 193; E:x:parte Reed, 100 U. S. 13-23. It would be as indecorous and as wanton a stretch of judicial power to assume in advance that a general court-martial will erroneously convict an accused person of a military offense, as it would be to indulge such a presumption concerning a common-law court. The real inquiry is, therefore, whether the 103d article of war is a statutory inhibition upon the jurisdiction of courts-martial over of· fenses which appear to have been committed more than two years before the issuing of the order for trial, unless, by reason of the exception mentioned, the accused shall not have been amenable to justice within that period. The solution of this inquiry s,eems very plain. Articlel:l 47 and 48 provide that any soldier who, having been duly enlisted in the service of the United States, deserts the same, shall, in time of peace, suffer such punishment, excepting del:\th, as a court-martial may direct, and shall be tried and punished by a court-martial, although the term of his enlistment may have expired previous to his being apprehended. Although article 103 declates that no person shall be "liable to be tried and punished" by a general court·martial for an offense which appears not to have been committed within the two years, this language does not limit or qualify the jurisdiction of the military tribunals, but prescribes a rule of procedure for the benefit of the accused, to be considered and enforced upon the trial, in the exercise of a jurisdiction already conferred. The limitation is a matter of defense, which is to beenter.tained and determined like any other question involving an adjudi. cation upon the merits of the case. 'i Language almost identical, declaring that no person should. be "prosecuted, tried, or punished" for an offense not committed within two years befote indictment found, was employed in the act of con'gress of April 30, 1790, § 31. In Johnson v. U. S. 3 McLean, 89, arising upon habeas corpus, the court held that although it appeared upon the record of conviction that the offense for which the relator was sentenced was not committed within the two years, no want of jurisdiction was apparent; that the court before whom he was tried had undoubted jurisdiction, and. if the statute was a bar it should, have been pleaded. In U. S. v. Cook, 17 Wall. 168, the defendant sought to avail himself of the benefit of the same statute by a demurrer to the indictment, and it was held to be a statute of limitations, and not available to the defendant by a demurrer. The precise question under consideration was decided by the circuit court for the district of California by FIELD and SAWYER, JJ., in Re

699
co'l'p'li!8,

FEDERAL RBPORTER.

White, 17 FED. REP. It was there held, on a proceeding in habea, that the limitation prescribed by article 103 is a matter of defense, and that the-court-martial was the tribunal having jurisdiction to try the charge of desertion, and to determine whether the limitation attached or not; and because of these conclusions the court refused to discharge the relator, and remanded him to be dealt with by the military authorities. If the relator was not duly enlisted in the service of the United States, he is not amenable to the jurisdiction of courts-martial. Not only is this the plain deduction from the statutory provisions which confer jurisdiction upon these tribunals, but such would be also the result from general principles. If his contract of enlistment was void, the government acquired no right to his services; he never became a soldier, and could not be a deserter. The provisions of the laws of congress in force at the time of the relator's enlistment, so far as they affect the point, are reproduced in sections 1116, 1117, and 1118, Rev. St. The antecedent legislation of congress upon the subject does not seem to afford any aid in the construction of these sections. The prior acts are collated and referred to in Re Riley, 1 Ben. 408, and in Seavey v. Seymour, 3 Cliff. 439; but there is nothing in their provisions, and no decisions of federal courts in constructionof them, which materially assists in solving the question whether, under the present laws, the enlistment of a minor,-over 16 years (jf age is void at his election. Section 1116 is as follows:
"Recruits enlisting in the army must be effective and able-bodied men, and between the ages of 16 and 35 years at the time of their enlistment."

Section 1117 enacts:

"No person'under the age of 21 years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians, provided that such minor has such parents or guardians entitled to his custody and control."

Section 1118 enacts:

"No minor under the age of 16 years, no insane or intoxicated person, no deserter from the military service of the United States, and no person who has been convicted of a felony"shall be enlisted or mustered into the military serv,ice."

The reasonable conclusion warranted by these sections would seem ·to be that the contract of enlistment of a minor under 16 years of age is void; but that if he is over that age it is valid, in the /tbsence of fraud or duress as to him, but during his minority is invalid at the election of his parents or guardian. It is not open to doubt that congres.8, under the constitutional power "to raise and support armies," may provide for the enlistment of minors, with or without the consent of their parents, and may give such effect and conclusiveness to the contract of enlistment as it may deem best.. And it is equally clear that where the. laws of congress authorize the enlistment .of minors.no question of the capacity of the

DiI BB DAVISON·.

628

infant to contract can arise. Whenever the common·law disability'is removed by statute, the competency of the infant to do all acts within the purview of the statute is as complete as that of a person of full age. U. S. v. Bainbridge, 1 Mason, 71; Rexv. Rothe'ljield Greys, 1 Barn. & C. 345; Schouler, Dom. Bel. 560. Sections 1116 and 1118 authorize the enlistment of minors of the age of 16 years, and thereby affirm their competency to enter into a contract with the government in that behalf. And it seems obvious that section 1117 was not intended for the benefit of the minor or for his protection, because it has no application unless he has a parent or guardian who is entitled to his custody and control. If such minors are competent to con· tract, they are competent to bind themselves by any representation or estoppel that may be an ingredient of the transaction out of which the contract arises. In many cases the military authorities have no means of knowing whether the minor who applies to enlist has parents or guardians who-.are entitled to his custody and control. It is not reasonable to suppose that congress intended to place it in the power of a minor old enough to perform military service to deceive the military authorities by representing himself as of full age, or as without parents, or as manumitted from their control, and to recall his representations and repudiate his contract after he has been ac· cepted as a soldier and received the benefits of his contract. The provision should not be extended to protect a party competent to contract against the consequences of his deliberate agreement, or of his own misrepresentations, unless the language plainly requires such a construction. The language is satisfied by a construction which permits the parents or guardians who are entitled to the services and custody of the minor to intervene and assert their rights, if their cpnsent to his enlistment has not been obtained. Several adjudications are to the effect that under section 1117, or former laws of congress of similar purport, the contract of enlistment should be held invalid on the application of the or guardian of the minor. Com. v. Blake, SPhila. 523; Turner v. !'fright,S Phila.296; Henderson v. Wright, ld. 299; Seavey v. Seymour, 3 Cliff,439.. None, however, are cited by counsel, or have met the attention of the court, in which it has been decided that the minor, if over 16 years of age, can assert the invalidity of his contract. The case of Menzes v. Camac, 1 Sergo & R. 87, arising under the act of March 16, 1802, is directly in point. The statute in that case was similar in its pro.visions to section 1117, and the court held the minor bound by his contract; that the parent alone could assert 'its invalidity; and ther.efore refused to discharge the upon habeas corpus. at his own '.,[ . application. , Several adjudications are cited to the effect that the oath of the minor at the time of his enlistment is upon the question of his age. Some of these rest upon the language of the statute in for refusing the disforce at the time. The more satisfactory

624

FBDERAL REPORTER.

charge, as the law now stands, seems to be that the enlistment is void only as to the parent or guardian of the minor. The order of the district court is reversed, and the relator is remanded to the custody of the officer having him in custody, and the writ discharged.

UNITED STATES V. FALKENHAINER. t

(Oircuit Oourt, E. D. Missouri.

l:lepteIDber 16, 1884.,

1.

STEALING LETTERS FROM POSTAL

5469, REV. ST.· CONSTRUED. It is an offense punishable by imprisonment, under section 5469 of the Revised Statutes, for a person in the postal service to steal a letter froID a postal car. Stenling a letter frOID a postal car is not a felony.

2. 3.

SAME-NoT A FELONY. SAME.....INDICTMENT.

Where the offense charged is stealing a letter containing a treasury note, It is not necessary for the indictment to allege the ownership of the note.

4.

SAME-EVIDENCE.

Where a postal clerk was charged with stealing letters frOID a postal car, and there was testimony tending to show that the letters stolen were taken frOID a straight package, which he had no right to disturb, held, that evidence was admissible to show what the content.. of the package was when it was received, and that the letters it contained, which were not were admissible in evidence for that purpose.

Error to the District Court for the Eastern District of Missouri. Indictment against a postal clerk for stealing letters from a postal car. The defendant was found guilty in the district court of stealing a number of letters from a postal car as charged, part of which contained and are stated in the indictment to have contained two onedollar United States treasury notes each. The indictment gives the names of the parties to whom the letters were addressed, but does not allege the ownership either of the letters or their contents. William H. Bliss, for the United States. Thos. C. Fletcher and Oeo. H. Shields, for defendant. BREWER, J. The defendant was convicted in the district court, under section 5469 of the Revised Statutes, of stealing and taking from a postal car certain letters, and sentenced to hard labor for a term of two years. A bill of exceptions was signed, a writ of error allowed, and the case is now in this court for review. Several questions have been ably and elaborately argued by counsel. I shall notice the most important. 1. It is insisted that the section prescribed no punishment for the offense charged, and the case of U. S. v. Long, 10 FED. REP. 879, decided by Uircuit Judge PARDEE, is cited as authority. With the highest respect for that distinguished judge, I cannot concur in his
lReported by Benj. F. Rex, Esq., of the St. Louis bar.