#### The People *ex rel.*Augustus F. Soer *v.*Austin O. Crane.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

1. National guard—Court martial—Jurisdiction.

Relator was fined by a delinquency court for delinquency at drill, and for non-payment of company dues. No copy of the charges was served upon him. *Reid,*that the court had no jurisdiction of his person.

2. Same.

The return showed that the marshal served the summons by mail, addressed to either relator’s tesidence, or place of business, but did not show that postage was prepaid. *Reid,*that service was not properly proven.

Certiorari to review proceedings of a regimental court martial

*J. J.*Leary, for relator; *Wafceman L.*Campbell, for resp’t.

Barnard, P. J.

The relator is an enlisted private in Company K, Fourteenth regiment, N. Y. State National Guards. He was returned as delinquent at drill and for company dues. A court was appointed to try him for the offense, and he was fined both for delinquency at drill and for non-payment of company dues. The court got no jurisdiction of the person of the relator. Courts for the trial of military offenses were provided for by chap. 299, Laws of 1883. There is some confusion by reason of the different designations of the military courts. There were three of them termed in the act courts of inquiry, general courts martial and delinquency courts.

Delinquency courts were again divided, and courts for the trial of delinquency of officers are differently constituted from courts for the trial of privates. Section 104 of the act of 1883 required a copy of the charges to be served on the alleged delinquent five days before trial. This was not done. Chap. 412, Laws of 1886, amended this section by leaving out the clause requiring notice of the charges to be served, so that under this section the proceedings would be regular if no other similar provision has been substituted. By § 114 of the act of 1883 no one could be tried before general courts martial unless a copy of the charges were served, and a copy of the order from the court at least ten days before the court met. By chap. 332, Laws of 1888, the legislature amended this section by striking out the word general, and thus providing that no one could be tried before a court martial unless a copy of the charges were served in advance of the hearing. Hnless the legislature intended this section as amended to reach all courts under the Military Code, enlisted men have no notice of the charges against them. Section 113 of the law of 1883 requires a summons, but nothing else, and no time was given.

The summons might be forthwith. It is in accordance with the rules of justice and the uniform course of legislation to afford every facility to an accused person to prepare for his defense if he has one. If this section applies to all courts as the preceding § 113 did in time, the case is defective. The service of the sum*826mons was not properly provea It could be served by mail in cities where there was a postal delivery, directed to the defendant’s place of residence or place of business as appears by roster. The returns state that the marshal served the papers by mail addressed to one of these places. The return does not show that the postage was prepaid. It will be assumed that in a great city like Brooklyn there is a postal delivery, but the papers should make a case of regular service The return does not aid the matter in this respect. That specifies one or another address without stating which and is a return of facts outside of the return of the marshal

Judgment should be reversed, with fifty dollars costs.

Dykman, J., conculs.

Pratt, J.

The return shows that upon default of appearance and answer, Soer was sentenced to pay a fine; but it does not appear that any proof was offered of the delinquencies of which he was found guilty.

The return is also defective in not containing the order of the commanding officer approving the sentence. The by-laws are not shown to provide a penalty for their violation.

For these defects the proceedings must be reversed, but without costs.