State v. Leonard

6 N.H. 435 | Superior Court of New Hampshire | 1833

Paeker J.

The first objection to be considered, is, that there was no sufficient evidence that Doe was clerk of the company of infantry, and that the complaint by him cannot, therefore, be sustained.

The constitution provides that the captains and subalterns, in the respective regiments, shall be nominated and recommended, by the field officers, to the governor, who is to issue their commissions immediately upon the receipt of such recommendation, and that the commanding officers, of regiments shall appoint their adjutants and quartermasters, the brigadiers their brigade majors, the major generals their aids, and the captains and subalterns their non commissioned officers.

By a statute provision the officers of the regimental staff are to be eommis sioned by the governor, and the sergeant’s warrants signe cl by the colonel of the regiment.

We are not aware of any case, in which a court has required evidence of a recommendation to the Governor, by the field officers, or a record of an appointment, by commanding officers of regiments, of such officers as are to be recommended, and appointed by them respectively.

The commissions issued to such officers, by the governor, are uniformly held to be the proper evidence of their appointments, and, upon the same principle, the warrant of the colonel in this case, by which Doe was commissioned as first sergeant, who is clerk ex officio, and which was issued in pursuance of the statute, was sufficient evidence that Doe had been legally appointed by the commissioned officers. We are not to presume that the colonel has disregarded the law, and issued a warrant to an individual not properly appointed ; and his warrant is as conclusive evidence of the due appointment of Doe, as first sergeant, as the commission of the governor would be, of the regular’ appointment of one of the regimental staff, who by statute are to be commissioned by him. In fact, the reason why the statute has provided that such warrants should issue, must have been that they may be evidence of the appointment.

The next exception is, that no sufficient evidence was offered of the limits of the company.

By the statute of 1823, the companies in the towns of Concord, Pembroke, &c, are recognized as existing companies, and are made to constitute the eleventh regiment.

It was in evidence that there had not been at any time, more than one company of infantry in the town of Pembroke, and, in the absence of other evidence, the presumption is that the limits of that company are coextensive with the limits of the town, and the fact cannot admit of a doubt, for otherwise the inhabitants of a portion of the town might be wholly exempt from military duty. Under such circumstances, it is not necessary that there should be evidence that the field officers have exercised the power, given them by statute, of prescribing and altering the limits of companies, as the limits are sufficiently defined without its exercise ; and, as the respondent was an inhabitant of Pembroke, he was of course the limits of that company.

Another objection is, that parol evidence was admitted to show that there was no sergeant in the company but the orderly sergeant, in order to prove that the captain might lawfully issue his orders to a private, to warn the members.

But this objection, as stated, cannot avail. If it had been attempted to show that individuals who had held the office of sergeant, and who still resided within the limits of the company, had been discharged from the office, by the company officers, such' discharge, being an official act, should have been recorded, and the record would have been the proper evidence. But vacancies in such offices often result from removals to places not within the limits of the company, and from death, which are not usually, if ever, made matter of record upon the company books, and such facts are the proper subjects of parol evidence. A record of such facts would be no better evidence of the facts than the testimony of a witness on the stand.

It does not appear, from the case, that the testimony was offered to prove a discharge of any individual who had previously been a sergeant, and the objection being to die admissibility of parol evidence, generally, to show that there was no sergeant, it must be overruled.

The remaining exception is, that Boardman to whom the orders were directed, and who executed them by warning the respondent, was not, at the time, a private in the company, he having the year before enlisted into the light infantry.

Tfie statute provides, that when there is no sergeant, except the orderly sergeant, the captain may issue his orders to one or more of the privates of his company, requiring him or them to warn the members.

Upon the literal construction of the statute, for which the respondent contends, it might be questionable whether there is sufficient evidence that Boardman was ever legally a member of the light infantry, as it does not appear that he himself ever gave any notice, in writing to the captain of the infantry, of his enlistment ; nor that he uniformed himself according to the uniform before that time prescribed by the field officers, although he did according to that actually worn by the light infantry at the time of his enlistment.

It might be questioned, also, whether there was any competent evidence that the company from which he enlisted was full at the time, so as to authorize his enlistment, as rolls of companies are to be kept, and the numbers should of course appear of record ; and it might farther be contended that the records of the light infantry should have been produced, to show his enlistment into that company.

Blow far these circumstances might avail, in defeating that enlistment, and to bold him still subject to the orders of the captain of the infantry, if he were now contending that he was not bound to obey such orders, we give no opinion.

The clause, in the statute, authorizing the captain to issue his orders to a private, where there are no sergeants, was enacted to provide a mode in which he might have his orders executed, and it is sufficient, in this case, that Boardman himself did not think proper to resist the authority. He considered the order obligatory upon him as a private in the company, and he executed it as such private. There were perhaps sufficient doubts about the validity of his enlistment, to render this a prudent course for him, and as he lived within the limits of the compa-rfy, was a subject of military duty, and yielded obedience to the order, we are of opinion, that under these circumstances, it is not competent for the defendant to object to the warning. As to him Boardman was a private. He was a private in fact, and a warning by him was sufficient to put the respondent upon enquiry whether the orders actually issued from the captain, and to render a neglect to obey them at his peril.

How it might have been, had the orders to warn been directed to, and executed by, a person who evidently could not be enrolled in the militia, as a female, or a blind man, or by one who did not at the time reside within the limits of the company, it is unnecessary to decide.

We hold Boardman to be a private, for this purpose, inasmuch as he lived within the limits, was liable to perform military duty, yielded obedience to the order, and thereby acknowledged its authority as binding on him, and this under circumstances which at least made it questionable whether it was not so.

Had the respondent thought proper to enquire, he would have ascertained that the orders issued from competent authority. If he chose to neglect that enquiry, it is not for him to ask a settlement of what might be a disputable question between Boardman and the captain, when the former did not think it expedient to contest the matter himself.

There must be, therefore,

Judgment on the verdict.