In re Dowd, No. 11,704

No. 11,704 | N.D. Cal. | Nov 21, 1898

DE HAVEU, District Judge.

The writ of habeas corpus was issued in tiiis proceeding upon the application of Esther Dowd for the release of her son, Thomas H. Dowd, an enlisted soldier in the army of United States volunteers. The petition for the writ alleges, and the fact was shown by the evidence given upon the hearing, that Thomas PI. Dowd is a minor under the age of 18 years, and that he enlisted as a United States volunteer on the 3d day of July of this year, without the written consent of his parents, who were then entitled to his custody and control. If these were all the facts, the petitioner would be entitled to the relief which she seeks. But it appears from the return and the evidence offered to sustain it that on October 27th of this year the said Thomas II. Dowd was duly convicted by a court-martial of the military offense of being absent from his post without the consent of his commanding officer, and thereupon sentenced to imprisonment in the post guard house at Ft. Baker, Cal., for the term of 30 days; and at the date of the issuance of the writ he was in actual confinement pursuant to such sentence. Section 1117 of the United States‘Revised Statutes provides:

“No person under the age of twenty-one years shall be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians: provided, that such minor has such parents or guardians entitled to his custody and control.”

It is urged in behalf of (.lie petitioner that the enlistment of the minor was absolutely void under this section, and that the parents of such minor are entitled to his present custody, notwithstanding the judgment of the court-martial; that, his enlistment being void, that tribunal could not acquire any jurisdiction, over his person, and its judgment is, for that reason, void. The case of In re Baker, 23 F. 30" court="None" date_filed="1885-02-13" href="https://app.midpage.ai/document/in-re-baker-8310244?utm_source=webapp" opinion_id="8310244">23 Fed. 30, undoubtedly sustains this contention. Ho, also, in the case of In re Grimley, 38 F. 84" court="None" date_filed="1889-03-12" href="https://app.midpage.ai/document/in-re-grimley-8837573?utm_source=webapp" opinion_id="8837573">38 Fed. 84, the court held that the enlistment of a person over the age of 35 years was void, and gave to the military court no jurisdiction to try him for the offense of desertion from the army, because such enlistment was in violation of section 1116 of the Revised statutes of the United States, which provides that persons enlisting in the army “must be effective and able bodied men, and between the ages of sixteen and thirty-five years, at the time of their enlistment.” This case was, however, reversed by the supreme court of the United States ( In re Grimley, 137 U.S. 147" court="SCOTUS" date_filed="1890-11-17" href="https://app.midpage.ai/document/in-re-grimley-92867?utm_source=webapp" opinion_id="92867">137 U. S. 147, 11 Sup. Ct. 54), and it seems now to be settled that the enlistment of a minor contrary to the provisions of the section of the United States Revised Statutes above quoted is not absolutely void, but only voidable (In re Morrissey, 137 U.S. 157" court="SCOTUS" date_filed="1890-11-17" href="https://app.midpage.ai/document/in-re-morrissey-92868?utm_source=webapp" opinion_id="92868">137 U. S. 157, 11 Sup. Ct. 57; McConologue’s Case, 107 Mass. 170); and it necessarily results from this view that the minor is subject to trial and punishment in the maimer provided by the articles of war for any offense against such articles committed by him while in actual service under his enlistment (In re Spencer, 40 F. 149" court="D. Kan." date_filed="1889-01-30" href="https://app.midpage.ai/document/in-re-spencer-8838812?utm_source=webapp" opinion_id="8838812">40 Fed. 149; In re Kaufman, 41 F. 876" court="None" date_filed="1890-04-21" href="https://app.midpage.ai/document/in-re-kaufman-8839506?utm_source=webapp" opinion_id="8839506">41 Fed. 876; Solomon v. Davenport, 30 C.C.A. 664" court="4th Cir." date_filed="1898-05-17" href="https://app.midpage.ai/document/solomon-v-davenport-8862043?utm_source=webapp" opinion_id="8862043">30 C. C. A. 664, 87 Fed. 318; In re Bogart, 2 Sawy. 396" court="None" date_filed="1873-04-21" href="https://app.midpage.ai/document/in-re-bogart-9300999?utm_source=webapp" opinion_id="9300999">2 Sawy. 396, Fed. Cas. No. 1,596). It follows, therefore, that upon the facts appearing Iiere the said minor is not now illegally restrained of Ms liberty, and this court is not authorized to interfere with the execution of the sentence imposed upon him by the judgment of the court-martial above referred to. ' After that judgment has been fully executed, the petitioner will be entitled to his custody, unless he shall then stand charged with some other military offense, committed since the service of the writ issued herein; and, in view of the near expiration of the term of imprisonment fixed by such judgment, I deem it a proper exercise of discretion to not finally discharge the writ at this time. It is ordered that the said Thomas H. Dowd be remanded to the custody whence he was taken, there to remain until November 28,1898, and that upon that day, at the hour of 11 o’clock a. m., he be, by the respondent herein, Herbert I. Choynski, -produced before this court, and that the .respondent then and there show cause, if any there be, why the said Thomas H. Dowd should not be then committed to the custody of the petitioner.