delivered the opinion of the Court:
This was a scire facias on a recognizance given by Martin as principal, and Huggins as security, to secure the appearance of the former at a certain term of the Shelby Circuit Court, to answer an indictment found against him for manslaughter. The defendants jointly pleaded to the scire facias: First, nul iiel record; second, duress as to Martin; third, that Martin was in the service of the United States at the time he was arrested, and that after giving bail he was held to said service and taken by the military authorities to the State of Mississippi, and prevented by reason thereof from appearing in accordance with the undertaking in said recognizance, and by reason of his being so held by the military authorities aforesaid in the State of Mississippi, it was out of the power of his surety to surrender him, and out of his power to appear, etc.; and, fourth, that Martin was a soldier and subject to the jurisdiction of the United States, and not to that of the State of Illinois.
Issue was taken on the first plea, and there was a demurrer to the second, third and fourth. The demurrer was sustained, and the defendants abided by the demurrer. The issue on the first plea was found for the people, and final judgment was rendered. The defendants sued out a writ of error, and now assign for error the ruling of the Circuit Court on the demurrer, and the finding of the issue under the first plea.
The second plea merely sets out that the recognizance was entered into under duress arising from the imprisonment of Martin by the sheriff, without containing any averments to show that such imprisonment was unlawful. The scire facias averred that Martin was indicted, that the court had ordered him to be held to bail, and that he was in the lawful custody of the sheriff for that purpose. This plea, even if good in other respects, was bad as a plea of duress, in not averring facts to show that such imprisonment by the sheriff was unlawful. It professes to answer the scire facias, but yet discloses no facts that the scire facias did not itself disclose. It was also demurrable for another reason. The security cannot plead the duress of his principal as a discharge of his own recognizance. Plummer v. The People, 16 Ill. 358.
The third plea was also bad. Soldiers in the service of the United States are not exempt because of such service from trial and punishment by the State courts, for violation of the criminal laws of a State. If their military superiors permit their arrest, the State courts thus acquire jurisdiction of their persons. True, in a district where martial law prevails, the military authorities may wrest them from the grasp of the State tribunals, but if they do not choose to do this, those tribunals will proceed to try them as they would try persons in civil life. The arrested soldier cannot by his own act take from the court its power, so long as his military superiors acquiesce. Jt follows, therefore, that if an arrested soldier is surrendered or abandoned by the military to the civil authority, he cannot relieve himself from arrest by giving bail, and then, having voluntarily placed himself again under the military jurisdiction, insist that his bail is discharged by the principle of vis major. It is his own voluntary act which has placed him under the so-called vis major, and therefore the phrase, as to him, is a solecism. Any other rule would, in a season of war, leave the State laws practically powerless to protect the life, person or property of the citizen as against the soldier. It can never be permitted that a furloughed soldier, free from the curb of his military superiors, who may be a thousand miles distant, shall at the same time be exempt from the restraints of law; that he may commit a crime and, when arrested, induce his neighbor to become his bail by the assurance that, when released from custody, he will join his distant regiment, and thus enable his security to go free of his recognizance. In the case before us, when Huggins bécame security for Martin, he knew the latter, on his release, would again fall under the control of the military arm, and he voluntarily incurred the hazard of that control being so exercised as to prevent Martin from keeping the obligations of his bond.
The articles of war are themselves in accordance with these views. The thirty-third article, Brightley’s Digest, page 76, provides that whenever - a soldier or commissioned officer is charged with the commission of an offense against the person or property of a citizen, such as is punishable by the law of the land, the commanding officer shall, on application in behalf of the party injured, use his utmost endeavors to deliver the accused person to the civil magistrate” for trial. And the article further provides that the commanding officer who fails to do this shall be cashiered.
Note by the Repórter.—See Myers v. The People, decided at present term.It is urged by the appellant that on the trial of the issue of nul iiel record the court erred in admitting the indictment in evidence, because there is nothing to show that it was returned by a grand jury into open court. It appears by the record that the only objection offered to the indictment, on the trial, was an alleged variance. Had the other point been made, the record of the court for that term could have been produced, and by that we should know with certainty whether the indictment was open to that objection. The recognizance admits the finding of the indictment, and in the absence of the record we will not presume that it failed to show its return into open court. The objection comes too late. We have not considered the question whether such defect in the record would vitiate the recognizance.
Judgment affirmed.