Moore v. United States

• Decision Date: 31 March 1908
• Docket Number: 1,765.
• Citation: 159 F. 701
• Parties: MOORE ex ux. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Fifth Circuit

159 F. 701

MOORE ex ux. v. UNITED STATES et al.

No. 1,765.

United States Court of Appeals, Fifth Circuit.

March 31, 1908

Rehearing Denied April 29, 1908.

Charles P. Cocke, for appellants.

Rufus E. Foster, U.S. Atty., for appellees.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM.

The case does not show, except by ex parte affidavit of Mrs. Moore attached to the petition for habeas corpus, that Auburn Moore was a minor when he enlisted in the United States military service, or that his enlistment was without the consent of his parents. The case was submitted in the lower court on the return of the military commandant, as follows:

'That the said Auburn Moore was duly enlisted as a soldier in the service of the United States at Columbus, Ohio, on February 6, 1907, for a term of three years. That the said Auburn Moore deserted said service at Ft. William Henry Harrison, Mont., on December 19, 1907, and remained absent in desertion until he surrendered himself at Jackson Barracks, New Orleans, La., January 3, 1908, and was thereupon committed to the custody of the respondent as the commanding officer of the post of Jackson Barracks. That the said Auburn Moore has been placed in confinement charged with said offense, and formal charges against him therefor are being prepared, and that he will be brought to trial thereon as soon as practicable before a court-martial to be convened by the commanding general of the Department of the Gulf.'

This return was not traversed, and we are not authorized to go outside thereof for the facts in the case. By the return the case is to be controlled by our decisions in Miller v. United States, 114 F. 838, 52 C.C.A. 472, and United States v. Reaves, 126 F. 127, 60 C.C.A. 675.

The judgment of the District Court must be affirmed.

When the charge of desertion against Auburn Moore has been disposed of, or if the military authorities do not proceed thereon within a reasonable delay, the appellants can renew their application for a writ of habeas corpus.