State ex rel. Klingle v. Fisher, 26430.
| Decision Date | 09 March 1928 |
| Docket Number | No. 26430.,26430. |
| Citation | 218 N.W. 542,174 Minn. 82 |
| Parties | STATE ex rel. KLINGLE v. FISHER, Sheriff. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Steele County: Fred W. Senn, Judge.
Habeas corpus by the State, on the relation of Francis L. Klingle, against Joseph Fisher, Sheriff of Steele County. From orders discharging both writs and remanding the relator to custody, he appeals. Both writs discharged, and relator remanded to custody.
Leach & Leach, of Owatonna, for appellant.
Frederic D. McCarthy, of St. Paul, Lieut. Colonel, Judge Advocate General's Dept., Minn. National Guard, and Harold S. Nelson, of Owatonna, Major, Infantry, Minn. National Guard, for respondent.
The relator, alleged to be a member of Company F, 135th Infantry, Minnesota National Guard, located at the city of Owatonna, in Steele county, was convicted by a summary court-martial of being absent from duty without leave and was sentenced to pay a fine of $25 or be committed to the county jail for a term of 25 days. He refused to pay the fine and was committed to the jail. Thereupon he procured a writ of habeas corpus from the district court of Steele county. That court discharged the writ and remanded him to the custody of the sheriff. He appealed. The cause is submitted to this court upon the record in the court below.
The only questions open for consideration under the writ are whether the military court had jurisdiction of the relator, and, if so, whether under the law it had power to impose the sentence which it did impose. State ex rel. v. Wagener, 74 Minn. 518, 77 N. W. 424, 42 L. R. A. 749, 73 Am. St. Rep. 369; United States v. Grimley, 137 U. S. 147, 11 S. Ct. 54, 34 L. Ed. 636. That the sentence was within the power of the court to impose is not questioned.
The relator contends that he never enlisted or became a member of the National Guard, and that the military court had no jurisdiction over him for that reason. He admits that he went to the recruiting officer at the armory for the purpose of enlisting, there signed the enlistment contract and enlistment oath, and that thereafter he reported for and attended drill twice and received pay therefor from the United States, but claims that the contract of enlistment does not become effective until the applicant takes the oath, and that although he signed the oath it was not read to him nor formally administered to him. The original enlistment paper is in evidence bearing his admitted signature at the bottom of the oath, and immediately below this is the certificate of the enlisting officer that the oath was subscribed and sworn to before him, and was read to the relator before he subscribed to it. It will be presumed from this record that the oath was properly administered. But conceding that the usual formalities were omitted, as claimed by the relator, yet he must be held to have known that taking the oath was prescribed as a part of the act of enlisting. He was intelligent and had a high school education. He had previously enlisted in the Naval Reserve and had then taken the oath. He signed the oath in question in the presence of the recruiting officer for the purpose of completing his enlistment, and that officer signed the jurat to complete the act of taking the oath. This was sufficient to make it binding. State v. Madigan, 57 Minn. 425, 59 N. W. 490; State v. Day, 108 Minn. 121, 121 N. W. 611; Atwood v. State, 146 Miss. 662, 111 So. 865, 51 A. L. R. 836, and citations in note. Furthermore, even if he were not sworn, the fact that he signed the enlistment contract and oath, and thereafter attended drill and received pay therefor, was sufficient to establish his status as a soldier. United States v. Grimley, 137 U. S. 147, 11 S. Ct. 54, 34 L. Ed. 636.
The relator presented evidence which shows that in April, 1925, he enlisted in the United States Naval Reserve for a term of four years, and that in August of that year, pursuant to such enlistment, he served for two weeks on the training ship Paducah on Lake Superior. At the close of this training period he returned to his home in Owatonna, and, so far as appears, has performed no duties under his naval enlistment since that time. He insists that having acquired the status of a sailor he is not amenable to the articles of war and that a military court-martial has no jurisdiction over him for that reason. This would doubtless be true if he were being tried for a violation of the duties and obligations resulting from his enlistment in the navy. But when he enlisted in the National Guard he made himself subject to the articles of war and brought himself within the jurisdiction of courts-martial for offenses punishable under those articles.
He urges that a man cannot be both a sailor and a soldier at the same time; and that his status as a sailor is incompatible with his status as a soldier. This may be true, and may render him liable to more serious charges than that now made against him, but it does not relieve him from his present predicament.
He claims, in substance, that his status as a sailor made him ineligible for enlistment as a soldier. We shall assume that enlistment in the Naval Reserve rendered him ineligible for enlistment in the National...
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