OpenJurist

Dl RE SPENCER.

149

In 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

FEDERAL. REPORTER,

vol. 40.

this court has the power and authority, in the investigation of this case, to determine the question whether court-martial did act within the exercise of its power and jurisdiction in trying this man for desertion, and imposing the sentence itdid.'· It has been repeatedly adjudicated, . and is well decided, that courts-martial are tribunals having their own pO\V,ers andjurisdiction, and that, while acting within the scope of their jurisdictiooand powers, their judgments and decrees cannot be reviewed by the civil courts. If the courts-martial act entirely without jurisdiction, the civil ('ourts do inquire into the cause of the imprisonment of the party held under sentence of the court, and do adjudicate and decide whether these courts havelj,cted within the scope of their power and jurisdiction;' and if the court finds that!they have not acted within the scope of their power and jurisdiction in imposing their sentence, then the civil courts will discharge the parties held by virtue of such sentence and orders. Assuming it to be a fact that this complainant when he was enlisted Was under the age of 21 years," that' he deserted· the .service as has been stated, that hewss arrested and brought before the court-martial for that desertion, the question presented to ,this court is this: Did the courtmartial hiwe jurisdiction to try the complainant on -that charge, and pass -the sentl'mceitdid? It is contended on the part of the complainant here that, inasmuch as he enlisted wbenhewas nnder 21 years his enlistment was ahsolutelyvoid; tps.t he never in reality .entered into the military service ohhe United States ; that he never' became a part of the military serviCe or establishment ()f the United States, and the court was entirely without power-and jurisdiction. I do not think that position can be maintained. The' authorities which have been read to me seem to establish very conclusively this rule: that the enlistment of a minor is voidable, not necessarily void; and thl1t he does really become by such enlistment, age, engaged in the service of the United States, and subject to the power and jurisdiction olthe military author· ities; and, such being the case, the court-martialhadJurisdiction to arrest and try him for the charge of deaertidn; The follOWing authorities sustain this position: In'6 Bogart, 2 Sawy. 397; In re White, 17 Fed. Rep. 723j In re Davison, 21 Fed. Rep.G18; In re Wall, 8 Fed. Rep. 85: Inre McVey, 23 Fed. Rep. '878; Ex parte Ander8on, 16 Iowa, 595; McConologue'8 CaBe, 107 Mass. 154j.&parte Reed,lUOU. S. 13; WaleBv. Whit· 7ley, 114 U. S. 564.-..s70, 5 Sup; Ot; Rep. 1U50; Smith v.Whitney, 116 U.S. 177, 6 Sup;Ot. Rep. 570. Further than that,in this case the complainant offers to show that he would not have become 21 years of age until the 5th day ofOctober I 1887. If that fact was made to 'appear' still he was over 21 years of age atthe time of his desertion, which, to my mind, would l'aiseanother serious questiol:l.. Even if the position of the complainant was otherwiseweH taken, whether or not apany who remains in the serviceltithout objection untilaftei he is 21 years ofage, 'and'then deserts, the' offense of desertion being cOilltnitted after he has at. tained his majority, could then question his amenability to the jurisdictionofthecourt-martial, presents"to my mind, a seriousquestiol1.

UNITED STATES f1. MALLARD.

151

However that may be, the authorities which I haYet1:?eforerecited virtually :iecide that a court-martial in cases of this kind has jurisdiction to try the soldier. for desertion,and that its finding cannot be reviewed by the civil courts. Both on reason and authority this case presents quite a diiferent question from that where the parents of a minor make application for his release from the military service on the ground of his minority. The complainant in this case will be remanded to the custody of Capt. Pope.

UNITED STATES ". MAI,LARD.

D. South OaroUno.. OCltobei"'l',l889.'

PbIlmy-oATB.

Defendant 'Wall indietedfor perjury. The evidence showed that he mad,? a vet'ballltatement before a United Btatell commissioner, ando)larged one B. With vialatingthe revenue,law. The commissioner reduced. his statement to writiJi" beginning with the words, Mo, "being duly sworn," etc., and ending with the)urat. On being told, "It you swear to this statement, put your mark here,· deleudall' made his mark. Held, that this was an oath.

'

..

'

Indictfuent· fOr' Pelj\.\tY' , 'On motion .toinstiuct jury to acquit. H. A. De Batl88ure, Asst. U. S. Atty. ,. . Samuel J.Lu l for defendant.
i ,;

SIMONTON, J. The indictment is for perjury in taking an affidavit before a cot'nmissioner.Thecase for the pl'osecutionis this: The defendant wentbefore·Corhmissioner Lathrop, and'made a verbal stateitbent charging one Benbow with violatingsectioi1;3242, Rev. St, The cOmmissioner reduced the statement to writing, beginning with the words, ,"Per80naUyappeared'beforemeWarren Mallard, who, being dulyswom, deposes," etc., and ending with the jumt, "Sworn to before me.»· He then read, the statement over to the defendant, asking if he could write. .upon the answer ofthedefundant that he could not write, the commissioner said to him, "If you swear to this statetnent,put your mark here.» The defendant put his 'mark, The indictment charges that the defendant waS II duly sworn." Does this evidence sustain the charge? There ili no form prescribed in this state in which an oath must or'may be administered; nor do the acts of congress lay down any rule on this subject; The oath may be administered or.. the Book, or with uplifted hand, or in any mode. peculiar to the religious. beUef of the person sworn, or in any form bindifig on his conscience. 1 Greenl.Ev.§ 371. The underlyingprinciple evidently is that whenever the attention of the person ''\1p to l!lwear is called to the fact that the statement is not a who . mere asseveration,but mUBtbe sworn, to, and, in recognition ofthis, he ilfllSked fu do'liome corporal act; and does it, this is a statement under ·oath. " And without lrilSSi'hg any book, ,elf .his or doJ8