Inhabitants of Hanson v. Inhabitants of South Scituate

115 Mass. 336 | Mass. | 1874

Devens, J.

This action was brought under the St. of 1865, c. 230, which was repealed by the St. of 1870, c. 392. As, however, by the latter statute “ acts done and proceedings commenced ” are excepted from its operation, the present action is not affected thereby, it having been commenced some months previous to the passage of the repealing statute. It presents the question whether the pauper Thomas, for the expense of the support of whom the action was brought, had acquired under the earlier statute, in the defendant town, what is sometimes called a military settlement.

The record of the defendant town kept in pursuance of the Sts. of 1863, cc. 65, 229, was of the nature of a public record, and therefore competent evidence of what was required to be contained in it, and the general order of the Governor of the Commonwealth was also competent evidence of the call for troops under the acts of Congress, and the assignment of its quota to the defendant town, although that this call was made and quotas were assigned to all the towns, were historical facts recognized by the terms of the St. of 1865, e. 230. Wayland v. Ware, 104 Mass. 46.

The certificate of discharge was also competent for the purpose of showing that Thomas did not leave the service otherwise than by reason of an honorable discharge. The defendant did not ask for any ruling as to the effect to be given to the indorsements upon it subsequently made at the office of the Adjutant General of the Army of the United States; but objected generally to its admissibility apparently for any purpose. What effect was given to these by the presiding judge is not shown by the exceptions; but its admissibility was not affected by indorsements, which, without the consent of the soldier, had subsequently been placed upon it.

In Fitchburg v. Lunenburg, 102 Mass. 358, reported since this cause was tried, it was held that a certificate in due form from the proper military officer of an honorable discharge from the military service of the United States was conclusive evidence of the cause and manner of leaving the service by a soldier, and that evidence, which in that case had been offered of the soldier’s previous absence from duty and of his arrest for "desertion, unaccompanied by any evidence that he had been convicted or sentenced therefor, was incompetent, and rightly rejected. Under this decision much of the evidence which was admitted for the defendant was immaterial, and it remains only to be seen whether it was in any way prejudiced as to the true issue of the case by the refusal to give the instructions requested, or to receive such other evidence as was offered.

The defendant requested the court to rule that the rolls admitted were conclusive evidence of desertion. Upon the muster-roll, which is made every two months, the reasons and time of absence of each soldier are required to be entered, (Articles of War, Art. 13, U. S. St. of 1806, c. 20,) and entry of the word “ deserted ” by the commanding officer of the company, who is then to account for all the men of his command, against the name of the soldier, is in the nature of a charge against such soldier of the crime of desertion; but it is not an adjudication that he is guilty of the offence, which, as it is one of the gravest offences known to the military law, can be made only by a court martial. The court, therefore, in permitting this evidence of the entry upon the muster-roll to be weighed with the other evidence in the case upon the question of wilful desertion, gave it a consideration at least as great as that to which it was entitled.

The defendant also requested the court to instruct the jury that intentional absence without leave from the military service constituted wilful desertion. Upon this point the instructions were correct. By the Articles of War, supra, there are defined the two offences of desertion (Article 20) and absence without leave, (Article 21,) which are treated by the punishments prescribed as offences of very different grades. By the use of the term “ wilful,” the Legislature did not, in our opinion, intend to do anything more than to mark and emphasize that distinction. Mere absence without leave does not constitute the offence of desertion under the Articles of War, or of “wilful” desertion. When committed by a soldier it is a violation of duty, but as it is accompanied always by an intention to return and to submit himself necessarily to punishment, if it has been incurred, it is a very different offence from that of abandoning the service permanently or for some indefinite time, unaccompanied by an intent to return, which constitutes desertion. In the instruction of the presiding judge this distinction was clearly and accurately pointed out.

The certificate from the Adjutant General’s Office, signed by one of the assistant adjutants general, of what appeared from the records of that office, did not profess to be a transcript of the records, but was simply a statement of what the certifying officer, under whose hand it was, deemed to be shown by them; and was rightly rejected, even if otherwise competent, for the reason that it was clearly possible that the officer might have been mistaken as to the true conclusions to be drawn from the records. Oakes v. Hill, 14 Pick. 442. Robbins v. Townsend, 20 Pick. 345. Exceptions overruled.