Page:Federal Reporter, 1st Series, Volume 8.djvu/100

 86 FBDBRjLIi BBPOBTEB. �was enlisted, and was under 21 years when the trial took place. The district judge decided that the eolistment of a minor who was old enough to understand the contract, and who waa in good faith ac- cepted as being of full age, was yoidable only, and not void ; and that if he had Committed the military offence of desertion, and was under arrest for that crime, and the court-martial had been ordered to try him, he ought not to be discharged on habeas corpus. This view of the rights of the parties is sustained by the authorities cited. See Com. v. GamUe, 11 S. & E. 93; Ex parte Anderson, 16 lowa, 595; MoCono- logue's Case, 107 Mass. 154, 170, per Gray, J. ; Re Dee, 25 Law Eep. 538; Re Beswick, 25 How. Pr. 149. It is true that Com. v. Gamble, 11 S. & E. 93, is doubted in a later case in the same court, (Com. v. Fox, 7 Pa. St. 336,) but in this case the judges found that the statute made such an enlistment absolutely illegal, and for that reason held it to be void. I have not l'ound a corresponding statute applicable to this case. It is illegalto enlist a marine between 18 and 21 years old, wi>,hout the consent of his parent or guardian, if any he have, and if an ofScer does this knowingly, he is liable to punishment; but this minor had neither parent nor guardian. His contract was voidable at common law ; but I do not see how I can hold it to be void. McNtdty's Case, 2 Low. 270. If not, it seems to follow that if he commits a mil- itary offence, and is actually arreated and in course of trial before the contract is duly avoided, he may be tried and punished. I do not mean to be understood as deciding that it would be desertion in a minor to leave the service openly after demanding his release, nor that he could be tried and punished after a court had released him. It appeared upon the cross-examination of a witness that Wall was actually tried and sentenced while in the constructive custody of the district court, the ofBcer who had him in charge not thinking it worth while to inf orm the court that the proceedings in the district court were pending. This conduct was highly reprehensible. Whether the sentence is a valid one, under these circumstances, is a question not brought here by the appeal, whioh is merely for a review of the decis- ion by the district court. If Wall or his friends should be so advised, they may probably be able to try this question upon new and inde- pendent proceedings. Appeal dismissed. ��� �