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It was claimed in argument on behalf of the government that these military homes are a part of the military establishment, and clothing issued to the inmates is furnished and used for the military service. It is clear that the inmates of these homes are not in the military service. It is not claimed that section 5438 applies to the purchase of clothing from them; nor do I think that the clothing issued to them is used in the military service of the United States.

Congress could probably prohibit the purchase of clothing from these inmates, and punish any one applying to it other purposes than that for which it is issued; but the law in force does not apply to it, and the demurrer must be sustained.

ENTICING SEAMEN TO DESERT - WHO PUNISHABLE.

UNITED STATES v. THOMPSON.

[2 Sprague, 103.]

In the United States District Court, Massachusets, 1864.

Under the Act of Congress of 1855,1 making the enticing a seaman who has regularly en

listed, to desert, an offense, a seaman who has passed the examination at the naval rendezvous merely, and has not been examined and passed on the receiving ship, is not enlisted..

The defendant was indicted for enticing one Joseph Lovett, a seaman in the navy, to desert. The indictment was found under the act of Congress, March 2, 1855,2 which provides that "any person who shall entice any seaman, ordinary seaman, landsman or boy, who may have enlisted into the naval service of the United States, to desert therefrom," shall, upon conviction thereof, be punished by fine or imprisonment.

He

At the trial, the evidence showed that Lovett, who had previously been in the navy, and whose term of service had expired, came to the United States naval rendezvous in Boston, to re-enlist, and passed through all the necessary steps there on the 1st of October, 1863. was examined and passed by the surgeon, and his descriptive and transcriptive lists made out and given to the commanding officer of the rendezvous. He took the oath required by the act of Congress of July 2, 1862,3 signed the naval shipping articles, which state among

1 ch. 136, sec. 11.

2 ch. 136, sec. 11, 10 U. S. Stats. at Large

3 ch. 128, 12 U. S., Stats. at Large 502

things, his "term of enlistment." and "date of enlistment," and received the following orders to go on board the receiving ship, and for his advance:

UNITED STATES NAVAL RENDEZVOUS,
BOSTON, Oct. 1, 1864.

}

SIR: Please receive on board Joseph Lovett, enlisted to-day by me, for the general service, for three years as seaman, monthly pay is twenty dollars. Honorable discharge.

(Signed)

SAML. R. KNOx, Recruiting Officer.

To the Commanding Officer of Receiving Ship.

UNITED STATES NAVAL RENDEZVOUS,

BOSTON, Oct. 1, 1864.

}

There is due to Joseph Lovett, seaman, sixty dollars advance and one hundred dollars bounty, payable by the paymaster of the receiving ship on his delivery on board ship in good order and time. The debt of security is to be paid from the advance.

(Signed)

SAML. R. KNOx, Recruiting Officer.

And every thing necessary to his enlistment, so far as the officer in charge of recruiting at the naval rendezvous was concerned, was completely performed according to the instructions of the Navy Department, which were introduced and read at the trial.

Lovett went to the ship; but when he reached it, was so intoxicated that the commanding officer, in pursuance of the eleventh section of said instructions, declined to receive him until he became sober. Lovett then left the ship, saying he would report in the morning. Before the morning, the defendant saw him, and induced him, by representations as to the general bounty he would receive on enlisting into the army, not to return to the vessel, but to enlist in the army.

Upon this state of facts, the defendant contended that Lovett had not, at the time when the alleged enticement took place, enlisted into the naval service, and was not then a seaman in the navy; that the contract of enlistment was not complete, and Lovett not enlisted until he had been examined by the surgeon on board the receiving ship, accepted there, and his name entered on the books of the ship.

It was argued for the government that the enlistment was perfected, and the contract complete at the rendezvous; but that the Navy Department reserved the right to discharge any enlisted man who, on being received on board ship, and examined there, did not appear physically strong enough for his work.

It was shown in evidence, that no recruit coming from any naval rendezvous, and who had passed through all the forms there, was ever 2 DEFENCES.

12

allowed his advance, or any pay, or had his name recorded on the paymaster's books, until he had passed the surgeon on board the receiving ship.

SPRAGUE, J. The defendant is indicted for enticing one Lovett, an enlisted seaman in the navy, to desert. The defendant objects that Lovett was not enlisted, and that is the question I have to decide.

Enlistment must be deemed to be a contract between the party and the government. The evidence in this case, and the regulations of the department, show that certain acts are all to be done at the naval rendezvous, an examination to be had, a paper to be signed, a document to be received, and the recruit is then to go to the receiving ship. another ordeal is to be passed, and further proceedings had.

There

In this case the person desiring to enlist passed the rendezvous and presented himself at the receiving ship so intoxicated that the officers would have nothing to do with him; and at this stage of the proceedings the enticing, if any, took place. The regulations provide that the name of the recruit shall not be entered upon the books of the receiving ship, or his advance paid him, until, after an examination by the commander of the ship and his medical officer, he shall be found fit for service; and that then, and not till then, he shall be entitled to, and receive his advance. He is not received as a seaman until then, he is not entitled to anything till then. The papers received from the officer in command of the rendezvous, do not entitle him to get his advance, unless he has passed the surgeon on board the receiving ship. They are merely documents to enable the recruit to pass the next stage in the proceedings; but he is not entitled to anything on that alone.

Now if the seaman, on signing the papers and passing the rendezvous, was not entitled to anything, then the contract of service on the one hand and pay on the other, had not been completed; the seaman had not enlisted, and so was not a deserter.

A verdict of acquittal was accordingly taken, in conformity with this opinion.

UNLAWFULLY RETAINING PENSION MONEY — RETENTION AFTER RECEIPT DOES NOT CREATE NEW OFFENSE.

UNITED STATES v. BENNETT.

[12 Blatchf. 345.]

In the United States Circuit Court, New York.

1. The Offense of Unlawfully Retaining Pension Money is complete at the time of reception and refusal to pay over. The subsequent retention does not create a new offense.

2. Where a statute is intended to embrace the whole subject-matter of previous statutes, it operates as a repeal of the former acts and annuls those not found in the new

act.

HUNT, J. The defendant was indicted in the district court in November, 1873. It was charged in the first count of the indictment that, as the agent of Ellen Mack, a pensioner, on the 23d of September, 1872, he received from the United States officer appointed to pay pensions the sum of $765.40 due to said pensioner, and that he then and there wrongfully withheld from said pensioner $405.33 of such money, contrary to the form of the statute, etc. The second count was the same as the first. The third count contained the same allegations as the first, as to receiving the money on the 23d of September, 1872, but charged that the sum mentioned was wrongfully withheld on the 31st of March, 1873. The jury found the defendant guilty on the first three counts of the indictment, and found him not guilty as to certain other counts, to which it will not be necessary further to refer. The defendant now insists that at the time of the alleged commission of the offense of withholding pension money, to wit, September 23, 1872, such withholding was not an offense under the statutes of the United States. This offense, it is said, was created by the statute of July 14, 1862, and by the statute of July 4, 1864.2 The provisions of these statutes, it is argued, were repealed by the act of July 8, 1870,3 and were not in force at the time specified in the first two counts, viz., September 23, 1872.

The statutes referred to are as follows: By section 6 of the act of 1862 it was enacted that the fees of agents and attorneys, in obtaining pensions for those entitled to pension money under that act, should not exceed certain rates therein specified. By section 7, it was enacted that any agent or attorney who should demand or receive any greater compensation for any services under that act than was thus specified, "or who shall wrongfully withhold from a pensioner, or other claimant, the whole or any part, of the pension or claim allowed and due such pensioner or claimant," should be guilty of a high misdemeanor, to be punished by a fine not exceeding $300, or by imprisonment not exceeding two years, or by both such fine and imprisonment. By section 12 of the act of 1864 a different tariff of fees is prescribed, and the sixth and seventh sections of the act of 1862 (above set forth) are declared to be repealed. By section 13 of the act of 1864, it is provided that any agent or attorney" who shall demand or receive any greater compensation for his services under this act than is prescribed in the preceding section of this act, or shall wrongfully withhold from a

1 12 U. S. Stat. at Large, 568, secs. 6, 7. 2 13 Id. 389, secs. 12, 13.

3 16 Id. 195, sec. 7.

pensioner, or other claimant, the whole, or any part, of the pension or claim allowed and due to such pensioner or claimant, shall be deemed guilty of a high misdemeanor," to be punished by "a fine not exceeding $300, or by imprisonment not exceeding two years, or by both." By the act of July 8, 1870,1 still another rate of fees is prescribed for agents obtaining pensions, under any or all the acts of Congress on that subject, and the agreement on the subject of fees is required to be filed with the commissioner of pensions. It was further enacted, in section 8 of that act, that any agent or attorney who shall receive a greater compensation for obtaining a pension than was allowed in the preceding section should be deemed guilty of a misdemeanor, to be punished by a fine not exceeding $500, or by imprisonment not exceeding five years, or by both. This statute contains nothing upon the subject of wrongfully withholding from a pensioner the whole or any part of the sum due and allowed to him. By the thirty-first section of the act of March 3, 1873,2 it is enacted that any agent or attorney who shall receive any greater compensation for prosecuting any pension claim than the commissioner of pensions shall direct, not exceeding $25, "or who shall wrongfully withhold from a pensioner or claimant the whole, or any part, of the pension or claim allowed and due such pensioner or claimant," shall be deemed guilty of a misdemeanor, and punished by a fine not exceeding $500, or by imprisonment not exceeding two years, or by both.

Upon these statutes the question is made, whether on the 23d of September, 1872, the withholding of pension money by an agent was an offense punishable by indictment. The argument to sustain the negative of this question is this: The alleged offense was created and made punishable by sections 6 and 7 of the act of 1862 above cited. By the express terms of section 12 of the act of 1864 (above cited), these sections 6 and 7 are repealed. The offense, however, is renewed and recreated by section 13 of the last mentioned act, which provides that an agent who shall receive a greater compensation for services under that act than is permitted by the preceding section, or who shall wrongfully withhold from a claimant or pensioner any portion of the sum allowed and due to him, shall be guilty of a misdemeanor, punishable by a fine not exceeding $300, or by imprisonment for two years, or both. Assuming, for the present purpose, that the last clause applies to all the pension acts of the United States, it is insisted that it was repealed by the act of July 8, 1870.3 The substance of these sections has been already stated.

The statute of 1870 intended, apparently, to embrace the whole sub

1 16 U. S. Stat. at Large, 194, 195, secs 7, 8.

2 17 U. S. Stat. at Large, 575.

8 16 U. S. Stats. at Large, 194. 195, secs. 7, 8.

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