tl:)e' age of'tbe:s61dier. :attbe time ot 'the enlistment. : If ,tbep'erl!'"On; was a min or at .the tin;le ofenl,istment, has since attained td 'his' futl age' Of 21 dis,,:, years, the Tl he is capable tocboose and act for him!,!!!lf.. '.Iioapp)y charge upon evidence that ,enlJstment was during his minority> .Mld ,upon. the allegation that sllch enlistment was without consent o( ijis,parent or 'guardian, he proving,the affirmative of infa,ncy at the time ment, arid that his father was then living, or that he then had a gilardiail, the burden of proof that the parent or guardian had consented t,1? ,such enlistment upon the government." . ,
In Re McNulty, supra, Judge LoWELL held that the minor himsel£ dur-' ing minority might claim the invalidity of the contract. The Case oj Menges, supra, relied upon by JUdge WALJ,ACE as a case in point, turne<i upon the question whether the parent's ratification, five or six days after, validated the enlistment. In giving his opinion, Chief Justice TrWR': MAN, in speaking of the required consent, says: "Before such consent given, the minor or the parent may demand his discharge, and the law forbids the ,holding of him." I have l'xamined all the. cases cited,and considered the reasoning of those judges holding that tlieenlistmeht' binds the minor' before and after attaining majority, and am to' agree thereto. It is a well-settled doctrine of every system. of jUrisprudence that whatever is done in contravention of prohibitory law is null and void. I think that, in accordance with this principle, the enlistment ofa minor without the written consent of his parent or gqardian, if he has one entitled to his services anti control, is invalid,linthif 1'10 legal effect, and, on principle and authority, that the inv3lidity'may be claimed. by the minor himself before or after attainioK majority, or by any person entitled to his control or services. A judgmentwill be entered in this case; reversing the judgment of the district court, and judging the writ of habeas corpus absolutejand directing the petitioner's discharge from custody,and the cancellation of the bonds given fQr .his. appearance pending the appeal., Costs j udgnient.· ,
UNITED STATES ?J. GLEASON.
(Di8triet (Jourt. D: South l!lvmENCE-PRooi!o01l'HANDWRITINci-WElGHT.
15, 1889.)
The value to be given to the opinion of a witness ae to the anthorship of handwriting is to be determined by the opportunity and eircumstaneesnlider which he'hall,'s.cqllired;,his knowledge. If he iean illiterate man, or one whose business seldombringsbim into cootactwith:w.ritiog, his opinio'n ie entitilld ,to-!llUl;lh less weight than if be were an educated man, accustomed to correepoI\deDce, and to seeing, people write. '
Indictment of Dennis F. Gleason for sending postal-cards through the mail. . L. F. YOU7Mn8,;U. B. Diat.,Atty. Bui8t &: Buist, for defendfUlt.
and threatenipg . ,. " , .' "',, ',',.:
J'EDERAL REPORTER.
SIMONTON, J., (charging jury.) The defendant is indicted for sending through the mail an indecent ahd threatening postal-card. The card is produced, duly stamped, and a leUer-carrier testifies that he received it at the post-office, and delivered it. The government seeks to fasten the guilt on defendant by proof of the haq-dwriting, which it is alleged is that of the defendant. Two witnesses have been introduced for that purpose. Neither of them saw the defendant write the card in question. Both testify that they have seen him write, and from this experience swear to the handwriting. I am requested to charge you with respect to. such evidence. As a geneml rule a witness can only testify as to facts within his personal knowledge. Questions of are among the exceptions to this rule. Whether or not a paper is in the handwritof a. person, if none of the witnesses actually saw him write it, is a matter of opinion; and the witnesses can speak as to their opinion. In such cases thejury pass upon two questions. The first is as to the crediof the witness; the second is as to the. value to be given to his 9pinion.. This last question depends upon his opportunity and capac,tYofacqpiring the knowledge of the handwriting. Has he seen it un96r sllchcircumstances as to satiEify the jury that he knows it? In other it is not the expression of the opinion which is to satisfy the jury. ',rhey must conclude from the facts- stated by the witnf'ss, the times, and circumstapces under which he acquired his places, J.t,nowledge, whether he really knows it or not. In this connection the jury should consider the capacity and experience of the witness. If he illiteratE! man, or oJ?e whose business seldom brings him into Wcith writing and written documen,ts, his opinion would be entitled to much less weight than if he pc an educated man; himself a penman andto seeing people write; and this, even i! hebein nO,sense an expert. You have seen, these witnesses. You have heard ,xninute detail aU the meanl! of knowledge they had of the handwriting of the defendant. Your verdict will depend upon your conclusion from their testimony.
UNITJilP '\., "r
eT.A.TES ". GOWDY.,
(Diafr{ot (Jourt, E. D. S,o,Ufh.Oarolina. January dW,DlSAGAiNBT
,': ..It Isnota ground for an indictment drawn' under Rev. St. U.S. § !'; 5479. for aiding andprocurhig one to make a false affidavit for the purpose ,;, .prpcuring:apension. that the affidavit·was· in fact made before a proper officer. as that section applies also to the offense Of using a genuine butfa!se instrument. knowing it to be false. intent to defraud the United States. , '
AFFIDAVIT.
i:
,
I:'
under Rev. St. §5479.' Onqlotionioquasb. H. A. De SaU88ure and 0. M. Furman. 'Asst. U. S. AUya·. T. M. Gilland and J. A. Kelly, for defen,daJ?t.