FEDERAL REPORTER, vol. 40.
In t'e DOHRENDORl" et al.
(C'ircuit Oourt, D. KanBIU.
February, 21, 1889.)
DESlIlBTION nOM MILITABY SERVICB-SOLDIBBs-MINoRS.
One who remains in the military service of the United States for more than two years after attaining his majority, receiving pay therefor, is within the meaning of Rev. St. U. S. p. 234, art. 47, providing that "any .. .. .. soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall .. * * suffer * * * any punishment * * * which a court-martial may directl " and the court-martIal's finding cannot be reviewed on h:abeaB corpus, though hiS enlistment was void because of hill minority.
On Petition for Habea8 COrpU8. C. W. .P. Da88ler, for petitioners. A,·thur Murray, Acting Judge Advocate, and W. O. Perry, U. S. Dist. Atty., BREWER,J.The August W. Dohrendorf is 10 the military prison. under sentence of a for the crime of desertion. The single question is as to ,the jurisdiction of that court. He enlisted November 23, 1$!34, being then a minor, aged 20 years and 9 months. His parents were living, and did not consent. to his enlistment. He continued in the !lervice until October" ·1887, when he deserted. This petition for hili! discharge is brought by his mother and himself. Questions of the right of a party to ,8 discharge from the military service, who enlisted, fl,S a minor between the ages of 16 and 21, without the ,consent of his parents or guardians, have been Jrequently before the ,courts, and some very careful and elaborate opinions prepared thereon. I shall therefore enter into no discussion of the question here presented, ·but simply state my conclusions. Article 47 of the rules and articles of war (Rev;. St. U. S. p. 234) provides that"Any officer or soldier who, having received pay, or haVing been dilly en'listed, in the service of the United States. deserts the same, shall. in time of , war, suffer death, or such other punishment as a court-martial may direct; .and in tiuie of peace, any punishment excepting death, which a court-martial may direct." , Assuming that the contract was void, und that he or his parents could lit any time have, avoided it, yet, three months after his from that time the control of his par,enlistment, he became of age, 'ents and their right to his services ceased. He Wias his own master. He continued in the service for more than two yea.rs thereafter; receiving pay for his services. !;Ie comes, therefore, within the letter of the article, asa soldier who had received pay." As such he was amebable cannot be thus to the jurisdiction of the court-martial, and its ,-collaterally questioned. In reZimmerman, 30 Fed. Rep. 176, and cases '-cited, in the opinion; In re Hearn, 32 Fed. Rep. 141; Tn re Spencer, post, 149, (districtc9,urt of Kansas, opinion recently flIed by FOSTER, J. 1) . and case's cited therein. The petition will be denied, and the prisoner remanded. .
Dl RE SPENCER.
(DfBtrict Oowrt, D. Kansas. Jannary JJO, 1889.)
DESERTION. FROlol MILITARY SERVICE-J"URISDICTION-MINORS.
As enlistment of a minor in the military service of the United States is voidable only, and not void, a court-martial has jurisdiction to try him for desertion, and ita finding cannot be reviewed by the civil courts. ,
On Petition for Habeaa Oorpus. William F. Linn, for petitioner. W. c. PCl'ry, U.S. Dist. Atty., and Arthur Murray, Acting Judge Advocate, for respondent. FOSTER, J., (orally.) This is a habeas corpus proceeding, instituted by CharlesE. Spencer, alleging in his complaint that he is unlawfully restrainedof.his liberty, and held in custody at the military prison at Fort Leavenworth by Capt. J. W. Pope, United States army. The complainant charges that he is illegally restrained of his liberty, and further charges that he is held in custody by virtue of the sentence of a courtmartial held at Fort Keogh, Mont., in the month of June in the year 1888, and by. sentence of which conrt he was ordered confined in the military prison for the period of four years. He further aUeges in his complaint that said court-martial had no jurisdiction to try him for the offense for which he was tried,-that is, the offense of being a deserter; and that the sentence of that court is absolutely null and void for this reason: that at the time of his enlistment he was a minor, being under the age of 21 years, and that he was enlisted against the wishes and consent of his parents. The return of Capt. Pope to this writ shows substantially the following facts: That the complainant, Charles E. Spencer, was enlisted on the 27th day of July, 1885, for a period of five years. That at the time of his enlistment he took the oath required by the military regulations as tohi8 age, and therein stated. that he was over the .age. of 21 years. Onthe descriptive list he is carried as being at tbat time 22 years. That he remained in the military service under this enlistment until the 11th day of April, 1888, at which time he desertedthe military service. That he was arrested on the 11th day of May following, and appeared before' the court-martial aforesaid upon the .charge of desertion. That he was found guilty of such charge, and was sentenced to be dishonorably discharged the service of the United States, .and that he be confined in the military prison at Fort Leavenworth, Kan., for the period of four years; and that the respondent, as the commandant of said prison, and in pursuance and by virtue of the sentence ,.of this court-martial, now holds the complainant in his custody and control. The respnndent contends that this court can only go so far in determining as to decide whether the court-martial acted within thel:!copeofits powers and its jurisdiction. In fact, substantially .all that is for this court by counsel for the complainant. is that