When it appeared on the return to the writ of habeas corpus ■that the petitioner had been summoned, tried and convicted of the alleged delinquency in the manner and form prescribed by law, it was the duty of the court below to remand him, and leave him to re view the proceedings against him by some other process or remedy. The court or judge on such a proceeding as this does not sit as a court of review to retry the case, or to pass upon the sufficiency of the evidence given on the trial.
I concur with my brother Daniels that the order should be affirmed.
Brady, J.:The relator sought, in this proceeding, to be relieved from the payment of _ a fine imposed by a court-martial for various reasons, but chiefly because when he enlisted he was a minor, and had not obtained his father’s consent. He seems, however,- to have been guilty of deceit in presenting an apparent consent of his father to his enlistment. When the respondents, the Eleventh Regiment, answered, they set up the facts confirming jurisdiction to impose the fine, including the enlistment and the consent already mentioned. The relator, in response, denied that the consent had been *395obtained, as well as other facts in the return, and thus a traverse was presented. No proof relating to any of the issues was taken save the affidavit of the relator’s father, in which he asserts positively that he did not consent to his son’s enlistment, and further, that on discovering in his house his son’s uniform, he immediately took it to the armory of the regiment mentioned, and left it< there, stating at the same time to the person to whom he delivered it the reason whyi he returned it. Under section 2039 of the Code, the practice imposes upon the judge conducting the proceeding, if it be insisted upon when a material fact is put on issue, the duty of hearing the evidence in a summary way and disposing of the same. Doubtless, here the controversy was submitted on the papers before us, it not appearing that any request was made for a further or other examination of the disputed facts, or any of them. The learned justice below seems to have regarded the asseveration of the father evasive. He said: “ It is true that he denied that he ever consented, but I do not understand him to allege that his signature to the consent is a forgery.” And he decided, therefore, that the enlistment was legal. It is thought that this was an erroneous view of the effect of the affidavit' of the father. He swore positively that he had not consented to his son’s enlistment, and this necessarily involved a denial of his having signed the consent produced, and he added further, in corroboration of his denial, that on discovering his son’s uniform he immediately returned it to the armory. This act was not denied or questioned, and had a very important bearing on the question at issue. His attention, for aught that appears, was not called to the consent, and it must be presumed, on his statement, that he would have denied having given it. It was not necessary for him to aver his signature, forming a part of it, to be a forgery. The result is that, on the proof submitted, the enlistment was illegal (Military Code, 1883, art. 6, § 40), and there was consequently no power to impose a fine.
The proceeding of the court-martial should be set aside, the order appealed from reversed, and the relator discharged.
Order affirmed.