Severance v. Healey

50 N.H. 448

• Court: Supreme Court of New Hampshire
• Decided: December 15, 1870
• Status: Published

Opinion

Smith, J.

In Huber v. Reily, 53 Penn. State 112, it was held, by a majority of the court, that the U. S. act of March 3d, 1865, imposing forfeiture of citizenship as an additional penalty for desertion, does not deprive any person of citizenship except after conviction of the crime of desertion before a court-martial. This view of the intention of the statute was adopted in State v. Symonds, 57 Maine 148; and we concur in it for reasons fully stated by Strong, J7, in delivering the opinion of the majority, in Huber v. Reily. See, also, Gardner v. Ward, 2 Mass. 244—in note, 248, 249.

Lebanon v. Heath, 47 N. H. 353, cited by the defendants, relates to the evidence requisite to prove the fact of desertion when it comes collaterally in question in an action of assumpsit. It is not an authority upon the question whether the act of congress contemplates conviction by court-martial as a prerequisite to the infliction of the penalty of disfranchisement. •

If the plaintiff had been convicted of desertion, several important questions would arise: among others, whether such conviction would, without reference to the act of congress, operate to disfranchise him under the constitution of New Hampshire; and whether the act of congress was intended to have, or can have, any effect upon the deserter’s right of suffrage in New Hampshire. But, as we do not understand the defendants to claim that there was any conviction, these points need not be considered.

Verdict set aside.