United States v. Reaves

• Decision Date: 07 December 1903
• Docket Number: 1,240.
• Citation: 126 F. 127
• Parties: UNITED STATES v. REAVES.
• Court: U.S. Court of Appeals — Fifth Circuit

126 F. 127

UNITED STATES v. REAVES.

No. 1,240.

United States Court of Appeals, Fifth Circuit.

December 7, 1903

W. S Reese, Jr., U.S. Atty.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE Circuit Judge.

The proceedings in the Circuit Court were on a petition for a writ of habeas corpus. A writ of error was originally sued out, but, by seasonable written stipulation and general consent, it is to be treated as an appeal.

The proceedings in the lower court and the facts in the case appear, from a bill of exceptions seasonably allowed, as follows:

'Be it remembered that at the present term of the Circuit Court for the Middle District of Alabama came on to be heard the petition of P. A. Reaves, who sued out a writ of habeas corpus to regain the custody of his minor son, E. L Reaves, held by the chief of police of the city of Montgomery, Alabama, as a deserter from the navy; the writ having been issued by the court. The chief of police made return on the 5th of January, 1903, as set forth in the record, the hearing of which, by consent, was set for the 15th day of January, 1903; and the matter was held under advisement until the 16th day of February, 1903, by consent. On that day the court announced its opinion sustaining the demurrer, adjudging that the minor was illegally detained, and that the petitioner, the father of the minor, was entitled to his custody and control. Immediately upon this announcement being made in open court, the district attorney of the United States made known to the court that on the 12th day of February, 1903 that the Secretary of the Navy had preferred formal charges, with specifications, against the said E. L. Reaves for desertion and fraudulent enlistment, which charges had been formally served upon the prisoner, which said charges and specifications are ordered to be made a part of this bill of exceptions, as Exhibit A. Thereupon it was agreed in open court that the return should be considered as amended, and as embodying in it the facts of the preferring of such charges, and their service upon the prisoner, and the petitioner again demurred to the return. Along with this demurrer, the court heard evidence of the parties as to the facts of the case. It was shown that P. A. Reaves is the father of the minor, E. L. Reaves, and that both the father and the minor at the time of his enlistment were, and still are, citizens of Alabama, residing in this district, and that the father never had manumitted or otherwise emancipated his minor son, who enlisted in the navy without the father's knowledge or consent, while absent from home, and when his father was ignorant of his whereabouts, at Meridian, Miss. When the father next heard from the minor, some months after the latter left home, he was informed that the minor had enlisted in the United States army and was in Porto Rico. His parents were unable to locate him definitely, and were not informed of his enlistment in the navy until about the time of his return to their home, in Montgomery, Alabama, during the Christmas of 1902. When he returned home, the father took charge of him, and put him to work in a cotton factory; the father never having consented to his enlistment. The minor had been at home about a week, when the chief of police arrested him as a deserter from the navy, and then the father immediately sued out this writ. E. L. Reaves, the minor, was enlisted in the navy some time in December, 1901, at Meridian, Mississippi, and deserted the receiving ship Minneapolis in October, 1902, at League Island, and started home. The minor, E. L. Reaves, is now, at the time of the hearing, about seventeen years and six months old. It was also shown that after his said enlistment the said minor received from the United States the usual pay and allowances allowed by law to landsmen in the navy, beginning with the date of his enlistment, and continuing up to the time he deserted. It was also shown that at the time of his enlistment he represented that he was twenty-one years and five months of age at the time. Upon this evidence, which was all the evidence adduced on the hearing, the United States, by the district attorney, moved the court to remand the prisoner to the custody of the chief of police, which motion was denied, and the United States then and there duly excepted. Thereupon the petitioner moved the court to make an order discharging the minor from the custody of the chief of police, and awarding the custody of the minor to the petitioner, which motion the court granted; and the United States, by the district attorney, then and there duly excepted.'

The question presented is whether a minor between the ages of 14 and 17 years, who, without the consent of his father, then living, and representing himself as over the age of 21 years, has duly enlisted in the navy, and who has received the usual pay and allowances from the date of his enlistment, and, after a service of some months, has deserted, and thereafter been arrested as a deserter, can be discharged from the custody of the naval authorities on a writ of habeas corpus sued out by his father, demanding the custody of his minor son.

Under section 1418 of the Revised Statutes, as amended May 12, 1879, and February 23, 1881 (U.S. Comp. St. 1901, p. 1007), boys between the ages of 14 and 18 years may be enlisted to serve in the navy until they shall arrive at the age of 21 years. Other persons may be enlisted to serve for a period not exceeding 5 years. By a further amendment, March 3, 1899, Act March 3, 1899, c. 413, Sec. 16, 30 Stat. 1008 (U.S. Comp. St. 1901, p. 1007), it was provided that hereafter the term of enlistment of all enlisted men of the navy shall be 4 years. By section 1419, as amended February 23, 1881 (U.S. Comp. St. 1901, p. 1007), minors between the ages of 14 and 18 years shall not be enlisted for naval services without the consent of their parents or guardians. By section 1420, as amended February 23, 1881 (U.S. Comp. St. 1901, p. 1008), no minor under the age of 14 years, no insane or intoxicated person, and no deserter from the military or naval service of the United States, shall be enlisted in the naval service. By section 1624 (U.S.; Comp. St. 1901, p. 1105), the navy of the United States hall be governed by the articles of war therein declared; and article 8 thereof provides that 'such punishment as a court-martial may adjudge may be inflicted on any person in the navy who * * * Twenty-first, or in time of peace deserts or attempts to desert or aids and entices others to desert.'

For a time the courts were at variance as to whether the enlistment of a minor in the army or navy without the written consent of his parent or guardian, and in face of the statutes of the United States prohibiting the same, was void, or only voidable. For cases, see 18 Am.St.Rep.note,pp. 639-641; also opinion of Judge Jones filed in this case, reported 121 F. 848. For the inferior United States courts, the question was settled in Morrissey's Case, 137 U.S. 157, 11 Sup.Ct. 57, 34 L.Ed. 644, wherein it was distinctly held that the enlistment of a minor in the military service of the United States without the written consent of his parent or guardian is good as to the minor, and voidable only at the instance of the parent or guardian. In that and the immediately preceding case of Grimley, 137 U.S. 147, 11 Sup.Ct. 54, 34 L.Ed. 636, all the adjudged cases of importance on the subject were reviewed; and in Morrissey's Case the court said:

'Section 1117 (U.S. Comp. St. 1901, p. 813) provides that '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.' But this provision is for the benefit of the parent or guardian. It means simply that the government will not disturb the control of parent or guardian over his or her child without consent. It gives the right to such parent or guardian to invoke the aid of the court and secure the restoration of a minor to his or her control, but it gives no privilege to the minor. The age at which an infant shall be competent to do any acts or perform any duties, military or civil, depends wholly upon the Legislature. United States v. Bainbridge, 1 Mason, 71 (Fed. Cas. No. 14,497); Wassum v. Feeney, 121

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