State ex rel. Graham , 39 Ala. 437 ( 1864 )

Per Curiam :

It may be conceded, without affecting the result of this case, that Mr. Emerson is between the ages of seventeen and forty-five years, and is therefore liable to militia duty on the call of the State, provided he is not, actually or constructively, in the army of the Confederate States as a conscript. Possibly this inference arises from the uncontro-verted statement in the return to the habeas corpus, that, pursuant to the call of the colonel commandant in the second-class State militia in the county of Montgomery, the said Beuben E. Emerson reported to the said colonel commandant, “but claimed tbat be did not belong to said second-class State militia, and was not liable to military duty as one of said class.” If be was not witbin tbe ages above specified, tbe call on tbe militia did not reach bim.

Taking, tben, tbe view of tbis question most favorable to tbe State in tbe present application — namely, tbat Mr. Emerson was between tbe ages of seventeen and forty-five— tbe question arises, did it appear to tbe judge of probate tbat be was exempt from military service in tbe Confederate States, and therefore liable to State militia duty ? Whether tbe paper called a furlough, produced in evidence on tbe trial, was legal evidence without proof of its execution, may present a very serious question; but it is unnecessary to decide it in tbis ease. If tbe paper was legally in evidence before tbe court, it only proved tbat Mr. Emerson was a soldier in tbe Confederate States service, on furlough. True, tbe furlough recites tbat. be, Emerson, bad “ made application for exemption as an overseerbut it does not show tbat be stood in tbe condition which would entitle bim to tbe exemption,.or tbat be bad executed, or even offered to execute, a bond. Tbe furlough was all tbe evidence in tbe cause. Governed by tbe unaided inferences arising from tbe fact of tbe furlough, we can come to no other conclusion, than tbat tbe petitioner was a conscript, out on furlough. Such furloughed soldier is not liable to militia duty on tbe call of tbe State.

[2.] On tbe other band, if we discard tbe furlough from our consideration, tben there was no evidence before tbe judge of probate; and it was tbe duty of tbat officer to discharge tbe petitioner from arrest as a State militia-man, because be was constructively in tbe army of the Confederate States as a conscript.

Yiewing tbe present application in every conceivable fight, we think there was no error in tbe judgment of tbe judge of probate prejudical to tbe rightful claims of tbe State ; and tbe writ of certiorari is refused.