202 F. 290 | E.D. Ky. | 1913
This cause is before me on writ of habeas corpus sued out by Charles A. Dunakin and Eliza H. Dunakin, his mother, by which they seek the release of the former from the custody of J. J. Regan, chief of police of the city of Lexington. The petitioner, Charles A. Dunakin, enlisted in the United States army on the 24th day of April, 1912, and deserted September 21, 1912. Thereupon a reward of $50 was offered for his arrest and delivery to the military authorities at the nearest military post. To obtain this reward he was arrested by Regan, and is held by him for the purpose of so delivering him. The ground upon which his release is sought is that he was a minor at the time of h,is enlistment, and enlisted without the consent of his mother, the petitioner Eliza H. Dunakin.
It is conceded that such was the case. He was.born April 4, 1892. His mother was his then only living parent, and he had no guardian. Pie made oath that he. was 21 years of age, and thereafter he was transported to his station, furnished with uniform and equipment, and received pay as a soldier. The statutory provisions relevant to the inquiry whether the petitioners are entitled to his release are sections 1116, 1117, 1118, and 1342, art. 3, U. S. Rev. Statutes (U. S- Comp. St. 1901, pp. 813, 814, 944).
Then how is it as to the mother? Were her son held only under his enlistment, she would be entitled to his release. Com. v. Downes, 24 Pick. (Mass.) 227; In re McDonald, Fed. Cas. No. 8,752; In re Perrone (D. C.) 84 Fed. 150. And the following cases may be cited in support of the position that she is entitled to his release, even though he is held, not Under his enlistment, but for the military offense of desertion: Seavey v. Seymour, Fed. Cas. No. 12,596; McNulty’s Case, Fed. Cas. No. 8,917; In re Baker (C. C.) 23 Fed. 30; In re Chapman (C. C.) 37 Fed. 327, 2 L. R. A. 332; In re Carver (C. C.) 103 Fed. 624; Ex parte Reaves (C. C.) 121 Fed. 848; Ex parte Lisk (D. C.) 145 Fed. 860; Ex parte Bakley (D. C.) 148 Fed. 56; Dillingham v. Bakley, 152 Fed. 1022, 82 C. C. A. 659.
No appellate court, therefore, can now be cited in support of the right asserted here. And it seems to me on principle she is not entitled to the custody of' her son. In the case of Morrissey v. Perry, supra, Mr. Justice Brewer, in referring to the minor who sought his release in that case, said:
“He was not only de facto, but de jure, a soldier — amenable to military jurisdiction.” ⅝
Such was the status of the minor here when he deserted. He was de jure a soldier, and hence could commit the military offense of desertion. Whilst, then, the mother was entitled to his custody as against the United States under his enlistment, she is not entitled to it as against his being held for such offense; for the parent has no right to his child’s custody as against his being punished for such offenses as he may commit. After her son has been tried for the
“After he left, he wrote back to me and said that he had enlisted in the army, and I thought I would reconcile myself to it, as he was so far out West. I had no means to do anything, but I thought I could get along. I had never given it a thought. His father was a soldier in the Federal army, and had served his time in the Federal army, and my father had been in John Morgan’s Confederate cavalry, and I made up my mind that I would just leave him alone; but when he came back to Lexington, and was out of the army, I wanted to keep him out.”
And again, in answer to a question as to whether she would have made any effort to obtain his release, had he never left the army; she testified as follows:
“Why I would have allowed him to remain in the army, and would have been reconciled and felt proud of him, because he would have been following his father’s footsteps.”
The petition for release is denied, and orders will be entered accordingly.