Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-05-20
THE DESERTER CASE.
APPELLATE COURT REvEasEs THE
DECISION OF JUDGE HUGHES.
TOUCHING ENLISTMENT OF MINORS.
Having Joined the Army They Are
Not Authorized to Determine Le-
eniify or iiieRaiity of His Service
The Appellate Court Adjourns.

The Appellate Court Adjourns.
w. II. Davenport, the young Henricoan
who deserted from the United States
army and was subsequently arrested by
the Federal authorities and released on a
writ Of habess corpus sued out before
Judge Hughes. was rearrested last night
on bench warrant from the United
states Circuit Court of Appeals. which
court overruled the opinion Of the lower
court.
The prisoner, who gave himself up TO
justice several months ago. admitted
both his enlistment and desertion, but
based his plea for a discharge on the
ground that he enlisted a minor, without
the consent of his parents. The grounds
upon which the opinion Of Judge Hughes
was overruled will be Of peculiar inter-
est at this time.
WHAT THE COURT HOLDS.
The opinion in the appellate court was
written by Judge Simonton and concur
red IN by the other judges.
t"0 "PIhloh holuS that the petition In
TINS case Is by the minor himself. not
Dy ms parent or guardian. Section 11l6 OF
the Revised Statutes authorizes the en-
listment Of recruits into the army with
men between the ages of l6 and 80. Sec
ton lll1 requires, in the case of enlist
ment or men under the age of q years,
the written consent OF his parent or
guardian, provided such minor is under
the control and in the custody of his
parent or guardian. The Supreme Court
OF the United States, IN Morrissey's case.
l3i United States, 49, constituting this
last-named section. says: but this pro-
vision is for the benefit Of the parent or
guardian. 1t means simply that the gov
eminent VIII not disturb the control of
parent or guardian over his or her child
without consent. 1t gives the right to
such parent or guardian to invoke the
aid Of the court to secure the restora-
ton Of minor to his or her control, but
1t gives no privilege to the minor. The
age at which an infant shall be compe-
tent TO do any act or perform any du-
ties, military or civil, depends wholly
upon the Legislature. Congress has de-
clared that minors over the age of 16 are
capable Of entering the military service
and undertaking and performing its du-
ties.
COULDN'T DETERMINE HIMSELF. |
After quoting a number of authorities.
winch Judge Simonton declares settles |
the merits Of this case, he continues:
The enlistment of Davenport was not |
void il was at the most unavoidable. |
In re Spencer, supra. Being in the army. |
his desertion was a crime punishable as
such. As is said by Judge Bond, In re |
Kaufman, supra Kaufman was a SOL |
N no ~ ,,v-1x.
there. But he was not authorized 10
determine for himself the legality or lille
gality of his service by asserting it. If |
he is in the service and takes pay as a |
soldier, whether he be properly enlisted
or not, If he deserts, he is liable TO be
held and punished by court-martial
The District Judge erred in his con-
clusion. 1t is ordered that the decision
Of the District Judge be overruled, and
that the petitioner Davenport be re-
turned TO the custody Of the Sheriff Of
Henrico."
The JOhnson-MiIIer Suit.
The only matters heard in this court
Yesterday were the motions in the case
IF Linda II. Johnson ct ais, appellants,
rs. J. r. Miller ct ais, appellees, Judges
Golf, Simonton, and Waddill presiding.
This was on an appeal from a decision
rendered in the United States Circuit
Court for the Western District, refusing
10 confirm a compromise agreement made
BY the plaintiffs and defendants in the
various causes pending at Knoxville,
Tenn, and in this State.
J. r. Miller receiver, moved to dismiss
The appeal for various reasons, and APP
II. Johnson and the
southern Building and Loan Associa-
this motion, and asked for
4 hearing at this term. The court held !
hat the decree was a final one, and it
would not force a hearing at this term,
md overruled the motion to dismiss for
larious reasons assigned. The compro-
Mise agreement involved in the case re-
luired the parties 10 ask the State court
O abandon all claims to the real estate
n the Western District, and 10 ask the !
federal court 10 dissolve its injunction
md allow the collection, without inter
erence by ii, of the notes and insurance
policies, etc, which are in possession Of
he State court, and were delivered by
he receiver of the Knoxville court I'M
er it's decree to the receiver of the State ;
curt, and are in their hands, or have
een collected by them.
Mr.. w. p. McRae, Of Petersburg, and
lessrs Walter L. Addison and ]. f. {
loore, of Pulaski, were admitted as S
ttorneys of the court. /
The court has adjourned for the term. {