*30 A » FEDERAL REPORTER."
In re BAKER» “
, (0'mnuit Uourt, D. Rhode Island. February 13, 1885.)
1. Eivmsmnnr or- Mmon in Artur-Discusses on Hsnnss Conrns.
A minor who has been enlisted in the army without the written consent of
his parents or guardians entitled to his custody and control, will be released
on habeas corpus issued on petition of such parents or guardians.
2. SAME—•]’UBISDICTION or COURT—lllARTIAL—DEBERTION.
In such case, a court-martial cannot retain jurisdiction of the enlisted man
under charges of desertion. ·
Habcas Corpus.
. Darius Baker, for relator.
Cyrus M. Van Slyck, for respondent.
CARPENTER, J. This is a writ of habeas corpus issued on the peti-
tion of Augustus E. Baker and Augustus T. Baker, and directed to
Clement L. Best, colonel of the Fourth Artillery, commanding him to
produce the body of the said .Augustus E. Baker. The return, and
the proofs, which are not disputed, show that Baker enlisted in the
army on the eighteenth day of December, 1884; that he afterwards
deserted the service, and was apprehended and returned to Fort
Adams; and that charges of desertion have been hled against him
pursuant to the forty-seventh article of war, (Rev. St. § 1342,) and
that he is now held for trial on said charges. The proofs further
show that he was, at the time of his enlistment, and still is, under the
age of 21 years; that the relator, Augustus T. Baker, is his father,
and is entitled to his custody and control, and has never consented
to the enlistment. The forty-seventh article of war is as follows:
"Any officer or soldier, who having received pay, or having been duly en-
listed in the service of the United States, deserts the same, shall, in time of
war, suffer death or such other punishment as a court-martial may direct;
and in time of peace, any punishment, excepting death, which a court—mar-
tial may direct."
The language of Rev. St. § 1117, is as follows: '
"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. "
The relators contend that the enlistment, being made contrary to
law, is absolutely void; that, consequently, Baker has not, at any
time, been "duly enlisted in the service of the United States," and
has not been capable to commit the crime of desertion; and that a
court-martial has no jurisdiction over him on such charges; and that,
nnally, the respondent has no right to restrain him, either to service
under his enlistment, or for punishment Eor the offense with which he
is charged. On the other hand, it is contended on behalf of the mil-
itary authorities that the enlistment is voidable only, and not void,
and that the recruit remained subject to military authority, and hence