Ex parte Henry

• Decision Date: 10 August 1918
• Citation: 253 F. 208
• Parties: Ex parte HENRY.
• Court: U.S. District Court — Eastern District of Wisconsin

253 F. 208

Ex parte HENRY.

United States District Court, E.D. Wisconsin.

August 10, 1918

W. J Kershaw, of Milwaukee, Wis., for petitioner.

H. A Sawyer, U.S. Atty., of Milwaukee, Wis.

GEIGER District Judge.

The facts as presented by the petition in this matter are in brief these: The applicant, a registrant under the Selective Service Law (Act May 18, 1917, c. 15, 40 Stat. 76), was informed against in the criminal court for Milwaukee county charged, I believe, with the crime of grand larceny. He was taken into custody, and thereafter such proceedings were had in such court, resulting in his offer and its acceptance of a plea of guilty. On the day of the reception of the plea the municipal judge deferred sentence, I believe, until the second day thereafter. At the time, or shortly after reception of the plea, the local board having jurisdiction over the petitioner served him with a notice, in the ordinary form, requiring him to report for military duty, I believe on the following day, fixing the hour for his report under the law prior to the time to which the court had deferred the matter of sentencing him. On the following day the petitioner appeared in court, and, in connection with the further proceedings to which the case had been adjourned, advised the court of what had transpired in the meantime, necessarily thereby advising the court of the status which he claimed to have received by virtue of the occurrences in the interim. The court thereupon imposed a sentence, I believe, of two years' imprisonment, which being done, a motion in arrest of judgment was made, which was denied. Thereupon application is made to this court for a writ of habeas corpus, seeking to discharge the custody which necessarily ensues upon the enforcement of the conviction in the criminal court of Milwaukee county.

Petitioner takes the broad view-- asserts, rather-- that because of the happening of the contingency under the Selective Service Law, through which he is inducted into the military service, the criminal court lost power to impose sentence. Counsel for the petitioner thus states the contention in a brief, after quoting from service law and its regulations, namely:

From and after the hour just named (quoting from the notice served) you will be a soldier in the military service of the United States. This order of induction (says counsel) is to be found on page 177, section 301, of the selective service regulations and is a part of the law.

The contention is further thus stated:

The chapter on mobilization, section 157, provides with reference to this matter as follows: 'From and after the day and hour thus specified each such registrant shall be in the military service of the United States. ' Further, section 140, page 72, of the selective service rules, provides as follows: 'Persons inducted into military service who absent themselves therefrom with the intent to evade military service are deserters'-- and further points out the steps to be taken in cases where such registrants fail to report.

Whereupon it is asserted on behalf of the petitioner:

From these provisions it is apparent that the military jurisdiction attaches...