'668
FEDERAL REPORTER,
vol. 37.
which prescribes the oath of the pre.emptionist. lilt is fundamental in the law of criminal procedure that an oath before one * * * who, although authorized to administer some kind of oaths, but not the one which is brought in question, cannot amount to perjury at common law, or subject the party takingit to prosecution for the statutory offense of willfully false swearing." U. S. v. Curtis, ifUpra. The statute declares that the oath must be taken before some "competent tribunal, officer, or person." ltmeans that the oath must be permitted or re-luired by the laws of the United States, and be administered by some tribunal, officer,· or person authorized by such laws to administer an oath in respect of the particular matters to which it relates. Section 5392, Rev. St. A person cannot be convicted of perjury for taking a false oath before one not empowered by law to administer the oath. State v. Phippen, 62 Iowa, 54,17 N. W. Rep. 146. So the question is whether the judge of probate was, at the time of the oath taken by defendant, authorized by the laws of the United States to administer such oath. The matter on which the perjury is assigned grew out of an affidavit made by the defendant on his application for a commutation of his homestead entry under section 2301, Rev. St. U. S. The statements sworn to, and which are alleged to be false in the indictment, are not the statements required or authorized by Jaw to be made in the affidavit of an applicant for a pre-emption, a homestead, or a homestead commutation entry. Seeseetions 2262, 2289-2291, Rev. St. U. S. They were therefore wholly irrelevant and immaterial. Perjury cannot be predicated upon them, however false they may be. Oath as to mere surplusage and immaterial statements cannot support a conviction for perjury. The officer before whom the oath was taken had no power to construct a new oath, different from that prescribed by the statute. My conclusion is that thejudge of probate had no authority in law to administer the oath charged in the indictment, and that the said oath was not one required by law in such a case as that set out in the indictment. The indictment is therefore fatally defective,-and the demurrer to it should be sustained. It is so ordered.
In re 1.
CosENOW.
«(Jircuit Court, E. D. Michigan. February 6, 1889.) ARMY AND N.,\v;y-ENLIBTMENT-M!NORB-DIBCHARGE-CONFINElIfENT FOB DEBER'rION.
,will not. b.e 2. SAME.
A minor soldier of the army, in confinement under a charge of desertion, from military service until he has been released from such confinement. ' A minor's contract of enlistment is not void, but voidable.
It Beems· that if he be over 16 years of age he can only be discharged upon the application of his parent or guardian: otherwise. if he be under 16, or if he were insane or intoxicated at the time of his enlistment. (Syllabw b1l tM Court.)
8.
SAME.
IN BE COSENOW.
669
Habeas Corpw. The petitioner sought the discharge of his son, Carl Cosenow, from the army of the United States, upon the ground of his infancy at the time of his enlistment. From the return of the commanding officer it appeared that Cosenow was enlisted at Fort Wayne, Mich., under the name of Fred. Smith, on the 16th day of March, 1887, for the term of five years; that on the 3d of May following he deserted from the service, and remained away until hili' apprehension, on the 28th of December, 1888; that a charge of desertion was preferred against him, and he was tried by a court-martial; and at the time of filing the petition, the court-martial had sent its proceedings to the reviewing authority for action, and that he was then held in custody awaiting the result of such action. It further appeared from the return that, after the desertion in May, 1b87, he again enlisted under the name of Kasenow, and was discharged on May 10, 1888. At the time of his enlistment he swore he was years and 7 months old. From the testimony of his parents, however, it appeared he was still a minor. J. B. McOraclcen, for petitioner. Oharles T. Wilkins, Asst. nist. Atty. BROWN, J. By Rev. St. § 1117, "no person under the age of twentyone years shall be enlisted or mustered into the military service of the United without the written consent of his parents or guardians, provided that such minor has such parents or guardians entitled to his custody and controL" The power of the federal courts to discharge soldiers who have been enlisted in violation of this section is now so well settled that a citatIon of authorities is unnecessary. The only complication in this case arises from the fact that the soldier has been tried upon a charge of desertion, and is now in custody, awaiting the disposition of his case by the reviewing authority. By the forty-seventh article of' war "any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall * * * suffer, * * * in time of peace, any punishment, excepting death, which a court-martial may direct." Petitioner claims that if it be once conceded that his son's enlistment was in violation of law, he was never duly enlisted, and a court-martial had no jurisdiction to try him for desertion. In our opinion, however, section 1117 refers only to such recruits as have gone through the form of an enliE>tment, and have thereby become subject to the rules and articles of war. The prohibitory language used in section 1117 is repeated in section 1118, which declares that "no minor under the age of sixteen 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 service." The enlistment of a recruit in violation of either section is equally illegal, and the proposition of the petitioner amounts to this: that any soldier who conceives he has been illegally enlisted, either by reason of his minority, orbyreasf)nof his insanity or intoxication at the time of enlistment, or
FEDERAlJ .·1!tEPOR'rD,vOl.
8'1.
by reason of a prior desertion from the military service, orof his hl1ving heen. 'oonvictedof a felony, may, 'take the law into his own' hands,_nd desert the.iseryice:without any other Jiability than that of establishing hjs disability, if he happen to be apprehended as a deserter. Weare 1'lotprepilred adopt so dangerous a doctrine. Carried to its legitimate extent, it :would' authorize any rooruit, upon the eVe of an important bat., tIe, or after the commission of.any military offense, to abandon his colors, perhaps in the very face of the enemy; and the officer who should order his arrest would be liable as a. trespasser. To our minds the, very statement' of ,this proposition; is its own answer. There is no douht whatever of the power of congress to authorize the enlistment of minors, even 1!i'ithout the consent of their parents; and to that extent to abrogate the 'Common-la:w disability of theinfallt to contract. U. S. v. Bai:nbridge, l Mason, 71; .In re Davison, 21 Fed. Rep. 618. In case ofan illegal ment,tlre rights of the soldier and Of his parents are abundantly protected byan"appeal to the secretary of war under the fOUI'th article of war, or by a writ of habeas corpus issuing from any federal court. An enlistment contrary to law is not void, but voidable. Ifthe soldier and his guardian both conllent to his serving, tne enlistment is binding, and the only object of obtaining the COllsent of the guardian in writing is that it cannot be retracted. So long as the verbal consent of the parent or guardian is not withdrawn by the commencement of proceedings to obtainhia 'release, the recruit is bound to military service, _ and is ject to the rules and articles of war. There is a marked distinction between the language used in section!'! 1117 and 1118. By an express proviso in thelformer, the enlistment of the minor is valid, in the absence of parents or guardians entitled to his custody and control. Indeed, the decided weight -of authority is that the recruit is estopped by his own oath of full age; that, as to him, the enlistment is valid and binding, and that no one but his parentS' or guardian can claim his discharge. In re Hearn; 82 Fed. Rep. 141; In re Da,/;'ison, 21 Fed. Rep. 618; U. S. v. Gibbon, 24 Fed. Rep. 135; In re Bef!Wick, 25 How. Pro 149; Menges v. Camac,l Sergo & R. 87. It is true, there are one or two cases to the contrary,but the point does not seem to have been carefully considered, and in our opinion the position taken is unsound. Re McNulty, 2 Low. 270; U. S.'v·. Hanchett, 18 Fed. Rep. 26. Upon the contrary, ifa minor under tha,age of 16 years be enlisted in violation of section 1118, we should have no doubt that such enlistment was voidable at the election of the minor himself. So, if he were insane or, intoxicated, or were a deserter or a. convicted felon, we see no reason to doubt that he could obtain his own discharge upon those grounds. As to the liability of a minor to be tried by a court-martial for any military offense committed after his enlistment, the cases, with perhaps one or two exce;ptions, are uniform. In the case of Grace v. Wilber, 10 Johns. 453, itw,l'ls hflld by the supreme court of the state of New York that if an infant, not liable to be enrolled in the militia, afterward!,! deserted the service, he could not be compelled to return, and an action of trespass would lie against a person who apprehended and detained
671 him as a deserter. In the court of errors, however, (12 Johns. 68,) the case was 'revei'lled', and it was held by a majority of the court that if a person not liable to military duty voluntarily entered the service as a soldier, he could De 'apprehendedas a deserter. "The question is not whether the contract is valid or void; nor is it whether the soldjer is enfrom the service or not. ,The contract' may be titled to ,be void,and,he may be entitled to his discharge; but it does not follow that he is to be his own judge, and to discharge himself by' desertion. , Any person detained by military authority or military' force may obtain his discharge, if he is entitled to it, by application to the proper civil authorities. 'Butasoldiel'iit actual service cannot be allowed to desert at pleasure." It is true that in (Jom. v. Gambl<J,l1 Serg.& R. 93, en,. listment of an infant in, the marine corps was held to be valid, but the upon which court remarked that there was he must be remanded, as the 10 confinement on a charge of desertion; "that the law is clear that' he must abide the sentence of a court-martial before he can contest the validity of the enlistment. There would beaJil end of all safety' if a minor could insinuate, himl:lelf into, an havin,g perhaps jeopl!-rded jts very existencaby betraying'its secretS to the enemy, escape military punishment by claiming the privileges 0'£ infancy." · It is true, the authority of this case,,,,as somewhat shaken by the subsequent case of Com. v. ./!oo;, 7Pa. St. 396, but we regard the earlier case as declaring the sounder doctrine. The directly decided in, 1865 by Mr. Justice DILLON, ofthe8upreme of Ipwa; in Ex parte Andman, 16 Iowa, 595, in which,the the validity of an enlistment where the recourt ,refused to inquire cruit was ,held to answer to a charge of desertion, and, ,remanded him.to the militltry court for trial. A ruling was made by Mr. Justice BACON the supreme court of New York in ReBewick, 25 ,lIow. Pro 149 ; by Mr. Justice MERRICK, of the supreme court of Massachusetts, ,in Re Dew, 25 Law Rep. 538; and, inferentially at least, by the supreme court of M8:ssachusetts in McOonologue'8 Case, 107. Mass. 170, and 'Jlyler V. Pw:wroy, 8 Allen, 480, 501; and by Judge LOWELL in Re WaU,. 8 85. It is true, in of these cases the the Fed. was n()t as sweeping as that contained in section 1117, but decisions werenotpuL upon t1)at ground. ... '. . The qnlycase opposed to this view, to which our attention has been citlled,.is that of Jnre Eaker, 23 Feq, Rep. 30,in which it was held that a court-lllartial could not retain jurisdiction oCa,? enlisted minor undercharges of desertion. We have read this case.witl;l great care, but are unable to concur in the opinion of the that the effect of the statute is, to make theenlistmeut so absolutely void recruit could not ,commit the crime of desertion, and that a court-martial nQtretain jurisdiction under the charge.. '.' Our conclusion is that the cQurt-martial of the offense eQmmitted bylhlil must be.remanded to a.wait the result of his trial. ..
in
DDER.\LREPORTEB, vol. 87. AMERICAN BELL TEL. CO. '11.
WALLACE
ELECTRIC
TBL. Co.
{Oirc'Uit Oo'Urt. S. D. NIJW York.
February 4. 1889.}
1.
PATENTS FOR mVENTIONS-VALIDITY-STARE DECISIS.
Former decisions of the circuit and supreme courts upon the validity and construction of the Bell telephone patents are to be followed in cases involving them in which there is no new evidence.
SAME-ANTICIPATION.
The Bell patents being for a process as well as an apparatus, they would not be invalid because the apparatus used in developing the process was previously known, and therefore the House patent of 1868 does not render them invalid.
SAME-EVIDENcE-AnMIssmILI'l'Y.
The Bonta patent of 1887 having been introduced for the purpose of showing that articulate speech can be transmitted on the make and break principle, ought not to be considered, in the absence of expert testimony that the apparatus is operative upon that principle.
In Equity. Bill by the American Bell Telephone Company against the Wallace Electric Telephone Company, for the infringement of complainant's patents. E. N. Dickerson and James J. Storson, for complainant. James A. 'Whitney, for defendant. WALLACE, J. In directing a decree for the complainant in this cause it seems sufficient to state that the examination of the record, which has been made to ascertain whether the case now presented is distinguishable in essel}.tials from the cases which have alrea.dy been decided in this <court and 'by the supreme court, does not disclose anything materially new. No useful purpose would be served by an extended discussion of the questions of.law and fact which have been so, exhaustively treated in the argument and brief Of counsel for defendant, because nothing of interest cim be added to what has already been said in the previous opinions of the courts. The construction which has been placed upon the Bell patent by the courts is,of course, to obtain now, unless it ought to be modified because something new in the state of the prior art has been shown. It would be strange if anything new, of value, could be shown after the thorough exploration and exposition of the subject made by the most competent experts and counsel in the efforts to defeat the patent, and escape the charge of infringement in former litigations. In the Molecular Oa8e,l which was decided by this court, the defense was prepared with great care, and argued with the best ability; the record in other <lases was introduced, including the testimony of the experts who testify for the .defendant in the present case; and no point of attack or defense was neglected by the defendant. There is nothing in the present record bearing upon the nature of Bell's invention, the meaning oCthe claims of his patent, or what constitutes infringing apparatus, of any real im182 Fed. Rep. 214.