Valentine v. True , 18 Me. 70 ( 1841 )

The opinion of the Court was drawn up by

Emery J.

If the plaintiff in error was liable to appear and do ■duty at the company training in Poland on the 11th day of September, A. D. 1838, as set forth in the writ, there is no error in the judgment of the justice, because it is admitted that True, the clerk, had, on his part, complied with the requisitions of law necessary to charge him. The ground on which the plaintiff in error expects exemption from the penalty, is his allegation, that during the whole of the year 1838, he was an acting member of a company of light infantry in Westbrook, in this county, and a sergeant and clerk therein, and an inhabitant of said Westbrook, having left there only for temporary purposes.

That light infantry company was organized in 1819, under an order in Council of the Commonwealth of Massachusetts, of February 11th, 1819, and was tobe raised within the limits of the regiment at Westbrook. This company was commanded by Nathan Barker, whose commission was dated 23d May, 1834.

The said Valentine was proved to be a sergeant and clerk of said company during the year 1838, and had not been discharged; had done duty in said Barker’s company on four different times, during the season of that year, but was excused, by the captain, at the regular training and muster.

Said Barker testified, that on the 2d January, 1839, said Valentine was still an acting member of his company, and clerk of it, and that he considered him an inhabitant of Westbrook; his name was on the list of voters there at the annual election in September, 1838; he was an unmarried man; when he left Westbrook, he said he was going to Poland, but should return to Westbrook after residing a few months at Poland; and that by the defendant’s brother in law he was told, that the original defendant had a chest at Westbrook, from which he took papers the Saturday previous.

The enlistment on which the defendant’s name was entered, was in evidence, together with the warrant appointing him sergeant and clerk. The last time said Valentine did duty in said light infantry company, was on the 16th August, 1888; and William Cox testified, that said Valentine was an inhabitant of Westbrook, and had' ever been, so far as he could judge from his acts and declarations.

Opposed to this evidence, was Seth C. Lane, who testified, that he knew the original defendant; that he lives at Mechanics’ Falls, between Poland and Minot; that he keeps a store there, but whether as owner or clerk he did not know; that there werfe two names on the sign, but he did not know whether the defendant’s was one of them, or not; that defendant came there about the 20th of June, 1838, as he said, and that he resided about three months in Poland, and then went over to Minot.

The magistrate, on this evidence, adjudged, that as the defendant had removed to a great distance from the limits within which the company of light infantry at Westbrook was raised, and out of the brigade, he could not be discharged from his liability to do military duty in Poland, on account of his enlistment in said light infantry ; and that the defendant was so far an inhabitant of Poland as to be liable to do military duty in that place.

That there are no authorities giving color for the conclusion to which the magistrate arrived, would be far too strong to assert. The cases relied on by the counsel for the original plaintiff, may fairly be introduced by him, in the hope that they may sustain the decision.

But according to our judgment, the facts disclosed do not warrant that decision. The weight of the evidence is, that the original defendant was absent from Westbrook for a temporary purpose. The most decisive evidence of his holding himself a member of the light infantry in Westbrook, is his doing duty therein four times that season, and the last time on the 16th of August, 1838. Ho had not removed out of the division, even for a temporary purpose. In Commonwealth v. Walker, 4 Mass. R. 556, by Parsons C. J. it is said, that temporary absence, on lawful business, might lawfully excuse him from doing duty in the company during such absence, but his name might still have continued on the roll. And in the present instance, the deiendant’s name is on the enlistment, and so far from claiming to be excused, he continued to perform duty to the 16th August, 1838.

There is therefore a defect of evidence that Valentine left West-brook without an intention of returning. He was not an inhabitant of Poland, liable to do military duty in that place. His being at Poland for a temporary purpose, was not such a removal out of the brigade as would subject him to the penalty for which judgment has been rendered against him.

That judgment must therefore be reversed.