Ex parte Hubbard

• Decision Date: 03 October 1910
• Docket Number: 723,Law Docket.
• Citation: 182 F. 76
• Parties: Ex parte HUBBARD.
• Court: U.S. District Court — District of Massachusetts

182 F. 76

Ex parte HUBBARD.

No. 723, Law Docket.

United States Circuit Court, D. Massachusetts.

October 3, 1910

William A. Brade, for petitioner.

William H. Garland, Asst. U.S. Atty., and John A. Hull, Judge Advocate, for the United States.

LOWELL Circuit Judge.

This is a petition for a writ of habeas corpus filed by Hubbard's mother. The agreed facts are substantially as follows Hubbard was born November 29, 1891. On January 21, 1898, he was duly committed to the custody of the Massachusetts State Board of Lunacy and Charity as a neglected child. From about April 1, 1907, until November 8, 1907, he was living at home with his mother, and working and contributing to her support. On November 11, 1907, he was driven from home by the cruel treatment of his father, and applied for help to the State Board of Charity-- the legal successor of the State Board of Lunacy and Charity. Thereupon McIntire, an agent of the State Board, accompanied Hubbard to the recruiting office, and by the help of McIntire Hubbard applied to be received as a recruit for the United States army. McIntire was not the legal guardian of Hubbard. He held the record of the board showing that Hubbard was then under 16, but he did not refer to this record, and accepted as true Hubbard's statement that he was 18 years old. By virtue of McIntire's consent as legal guardian, Hubbard's application was accepted. The consent was in the following form 'Consent in Case of Minor.

'(See A.R. 859.)

'I Joseph P. McIntire, do certify that I am the legal guardian of Edwin H. Hubbard, that the said Edwin H. Hubbard is 18 years of age, and I do hereby freely give my consent to his enlisting as a soldier in the army of the United States for the period of three years. Given at Boston, Mass., this 11th day of November, 1907.

(Signed) Joseph P. McIntire.

'Witness Bernard Remington.'

Upon being examined and being accepted as an applicant for enlistment, Hubbard returned to his home, and told his mother that he had enlisted, that the state had signed his papers, and that he was going away the next morning to Ft. Slocum. Thereupon the petitioner said, 'Edwin, you have been a good boy,' and gave him her blessing. Hubbard's mother had no knowledge of his intention to enlist or enter the army before the conversation just mentioned. She understood that Hubbard was a soldier, and never gave written consent to his enlistment. On November 14, 1907, at Ft. Slocum, Hubbard signed and swore to a paper as follows:

'State of New York. City or Town of Fort Slocum-- ss.:

'I, Edwin H. Hubbard, born in Haverhill, in the state of Massachusetts, aged 18 years and . . . months, and by occupation a clerk, do hereby acknowledge to have voluntarily enlisted this 14th day of November, 1907, as a soldier in the army of the United States of America for the period of three years, unless sooner discharged by proper authority; and do also agree to accept from the United States such bounty, pay, rations and clothing as are or may be established by law. And I do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and Articles of War.

(Signed) Edwin H. Hubbard.

'Subscribed and duly sworn to before me this 14th day of November, A.D. 1907.

(Signed) James D. Fife, 'Capt. Med. Dept. U.S.A. 'Recruiting Officer.

'I certify that I have carefully examined the above-mentioned man agreeably to the general regulations of the army, and that in my opinion he is free from all bodily defects and mental infirmity which would in any way disqualify him from performing the duties of a soldier.

'(Signed) James D. Fife, 'Capt. Med. Dept. U.S.A. 'Examining Officer.

'I certify that I have minutely inspected the above-named man, Edwin H. Hubbard, previous to his enlistment, and that he was entirely sober when enlisted; that to the best of my judgment and belief he fulfills all legal requirements, and that I have accepted and enlisted him into the service of the United States under this contract of enlistment as duly qualified to perform the duties of an able-bodied soldier, and in doing so have strictly observed the regulations which govern the recruiting service. This soldier has blue eyes, light brown hair, fair complexion; is 5 feet 4 1/4 inches high.

'(Signed) James D. Fife, 'Capt. Med. Dept. U.S.A. 'Recruiting Officer.'

On November 30, 1907, the State Board of Charity discharged Hubbard from its custody and control. Hubbard was thereafter assigned to Company L, 27 United States Infantry, was stationed at Ft. Sheridan, Ill., was clothed, armed, equipped, and served as a soldier, and was paid as such up to March 21, 1908. On that day he voluntarily deserted the service of the army, and remained absent in desertion until April 21, 1910, when he was arrested at Everett, Mass., as a deserter. He was brought to trial before a general court-martial, and was arraigned and tried for a violation of the forty-seventh and sixty-second Articles of War. His counsel before said court-martial filed a plea to the court-martial's jurisdiction, relying on Rev. St. Secs. 1117, 1118 (U.S. Comp. St. 1901, pp. 813, 814). Hubbard was convicted by the court-martial and was sentenced to imprisonment at hard labor, which sentence was duly approved by the officer commanding the Department of the East. Pursuant to the order of the court-martial, Hubbard was dishonorably discharged.

The statutes which may have bearing upon the case are as follows:

Rev. St. Sec. 1116:

'Recruits 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 limitation as to age shall not apply to soldiers RE-ENLISTING. ' (U.S. Comp. St. 1901, p. 813.)

Section 1117:

'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.'

Section 1118:

'No minor under the age of sixteen years, no insane or intoxicated person, no deserter from the military service of the United States, and no person who has been convicted of a felony shall be enlisted or mustered into the military service.'

Section 1342:

'The armies of the United States shall be governed by the following rules and articles: * * * The word soldier shall be understood to include noncommissioned officers, musicians, artificers, and privates, and other enlisted men, and the convictions mentioned therein shall be understood to be convictions by court-martial. ' (U.S. Comp. St. 1901, p. 944.)

Article 3:

'Every officer who knowingly enlists or musters into the military service any minor over the age of sixteen years without the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated persons, or any deserter from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense, shall, upon conviction, be dismissed from the service, or suffer such other punishment as a court-martial may direct. ' (Page 945.)

Article 47:

'Any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall, in time of war, suffer death, or such other punishment as a court-martial may direct; and in time of peace, any punishment, excepting death, which a court-martial may direct. ' (Page 952.)

Article 48:

'Every officer who deserts the service of the United States shall be liable to serve for such period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlistment; and such soldier shall be tried by a court-martial and punished, although the term of his enlistment may have elapsed previous to his being apprehended and tried.'

Article 62:

'All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general, or a regimental, garrison, or field-officers' court-martial, (a) according to the nature and degree of the offence, and punished at the discretion of such court. ' (Page 957.)

The principal question argued was this: Had the court-martial jurisdiction to try Hubbard for what would have been a military offense if his enlistment had not contravened the statutes? The petitioner contended that Hubbard's enlistment was forbidden by Rev. St. Secs. 1116, 1117, 1118 and by article 3. Her counsel argued that Hubbard's contract of enlistment was either utterly void or at least voidable at her election; hence that the contract of enlistment had been avoided, that Hubbard is not and never was a soldier, that so the court-martial was without jurisdiction, and that Hubbard should be discharged on this petition. The respondent contended, on the other hand, that the enlistment, though in...