In re Miller

• Decision Date: 29 March 1902
• Docket Number: 1,140.
• Citation: 114 F. 838
• Parties: In re MILLER.
• Court: U.S. Court of Appeals — Fifth Circuit

114 F. 838

In re MILLER.

No. 1,140.

United States Court of Appeals, Fifth Circuit.

March 29, 1902

Wm. H Atwell, U.S. Atty., and Col. E. H. Crowder, Judge Advocate U.S. Army, for appellant.

R. M Vaughan (F. P. Works and J. E. Clarke, on the brief), for appellees.

Before McCORMICK and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

Daniel Marshall Miller enlisted in the United States army on July 26, 1901, as a private soldier, at Austin, Tex. He represented himself to be 21 years of age, when in fact he was only about 17. His parents were both living, and were citizens of Texas, residing in Hill county, in that state. They did not consent to his enlistment. He was transferred from Austin, Tex., and attached to the 105th company, coast artillery. He received from the government $15.02 pay as a private soldier, and drew clothing from the government of the value of $35.36. He deserted on September 14, 1901, in California, and went to Hill county, Tex., where, on the 8th day of February, 1902, he was arrested as a deserter by the sheriff, and delivered into the custody of Capt. J. A Dapray, the recruiting officer for the United States stationed at Dallas, Tex. On the 15th of February, 1902, Col. Forbush, by special order, appointed a general court-martial to meet at Ft. Sam Houston, Tex., February 19, 1902, for the trial of such prisoners as may be properly brought before it and a detail was made for the court. Charges, with proper specifications, were preferred against Miller: (1) Desertion, in violation of the forty-seventh article of war; and (2) for fraudulent enlistment, to the prejudice of good order and military discipline, in violation of the sixty-second article of war.

It is specified under the first charge that he deserted on or about the 14th of September, 1901, and remained absent in desertion until apprehended on or about February 12, 1902. It is specified by the second charge that he, being a minor, did fraudulently enlist as a soldier in the service of the United States by falsely representing himself to be 21 years of age, and that since his enlistment he received pay and allowance thereunder. On the 17th of February, 1902, Michael M. Miller and Lucy A. Miller, the parents of the prisoner, filed a petition in the district court of the United States for the Northern district of Texas, praying for the writ of habeas corpus, and seeking the discharge of Daniel Marshall Miller from further detention by the recruiting officer of the United States, and praying that he be restored to the custody and control of the petitioners. The enlistment of the prisoner, his desertion, arrest, and detention, are stated in the petition; and it is therein alleged 'that the said Daniel Marshall Miller is now detained in the custody of the said recruiting officer on the charge of having deserted the military service of the United States. ' The court ordered that the writ issue, directed to Capt. J. A. Dapray, recruiting officer for the United States, stationed at Dallas. The return to the writ recited the fact of Miller's enlistment, desertion, and arrest, and that charges had been preferred against him as herein stated, and that respondent held the prisoner, by authority of the United States, as a soldier in the United States army, charges having been preferred against him, and that he would be brought to trial as soon as practicable before a court-martial convened by the commanding officer of the department of Texas. It is also averred in the return that these offenses were committed by the prisoner, and the prosecution thereon begun, before the suing out of the writ of habeas corpus in this case, and that the jurisdiction of the military authorities had attached before the institution of this proceeding in the district court. The learned district court was of opinion that the parents of the prisoner had never lost, by reason of the enlistment of their son, the right to his custody and control, and that they were now entitled to exercise that control and custody. An order was made that the prisoner be released and restored to the custody and possession of his parents. An appeal was taken to this court, where the order discharging the prisoner is assigned as error.

The question to be decided is whether the court-martial has jurisdiction to try the prisoner on the charges preferred against him. If it has jurisdiction, the civil courts have no right to interfere. If it is without jurisdiction, it is the duty of the civil courts to discharge the prisoner. The contention in behalf of the petitioners is that, being under 21 years of age, the prisoner could not become a soldier without their consent, and that he cannot, therefore, be held for trial by the court-martial. This contention must be examined in the light of the statutes. '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. ' Rev. St. U.S. Sec. 1116. '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. ' Rev. St. U.S. Sec. 1117. 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 (any criminal offense) (a felony) shall be enlisted or mustered into the military service. ' Rev. St. U.S. Sec. 1118. It will be observed that recruits may enlist who are between the ages of 16 and 35, but, if under 16, they shall not enlist at all, but, if over 16 and under 21, and they have parents or guardians entitled to their custody, they shall not be enlisted without the written consent of such parents or guardian. The prisoner belonged to a class that could enlist. He was between the ages of 16 and 35. The only infirmity in his enlistment was that he was over 16, but under the age of 21, and enlisted without the written consent of his parents. If an officer had enlisted him without such consent of his parents, knowing them to be entitled to his custody, and knowing him to be a minor, he would, on conviction, be dismissed from the service, or suffer such other punishment as a court-martial may direct. Rev. St. U.S. Sec. 1342, art. 3. But the prisoner was enlisted on his assertion that he was 21 years of age. By section 3 of an act of congress approved July 27, 1892, fraudulent enlistment, and the receipt of any pay or allowance thereunder, 'is declared a military...