
    Commonwealth vs. Gustavus A. White & another.
    An indictment under St. 1863, c. 91, § 1, for recruiting a person in and for the military sez* vice of the United States, without authority, is not sustained by proof that the defendant solicited and induced such person to leave this commonwealth and enlist in the military service elsewhere.
    Indictment under St. 1863, c. 91, § 1, charging the defendants with recruiting in and for the military service of the United States one Charles H. Fuller, without authority, al Taunton.
    At the trial in the superior court, before Fose, J., there was evidence tending to show that the defendants, by fraud, and by plying Fuller with liquor, induced him to go from Taunton to New Hampshire, where he enlisted in the military service of the United States as a substitute. The judge instructed the jury that they might return a verdict of guilty, if they were satisfied that the defendants, in the county of Bristol, solicited and induced Fuller to enter the military service of the United States in New Hampshire, without authority from the governor of Massachusetts or the president of the United States, and that Fuller entered the military service of the United States.
    The jury returned a verdict of guilty, and the judge, being of opinion that the construction of the statute was so important and doubtful as to require the decision of this court, reported the case accordingly.
    
      J. Brown, for the defendants, cited Respublica v. Roberts, 1 Dali. 39 ; 1 Bishop Crim. L. 139; St. 1863, c. 252.
    
    
      Foster, A. G., for the Commonwealth.
   Metcalf, J.

It is the opinion of the court that the evidence set forth in the report of the judge who tried this case does not show that the defendants did recruit Charles H. Fuller in and for the military service of the United States,” within the meaning of St. 1863, c. 91, § 1, on which this indictment is founded; but that said evidence shows the defendants to be guilty (if of any offence) of enticing or soliciting the said Fuller to leave the Commonwealth for the purpose of enlisting or offering himself as a substitute for a drafted person in military service else, where, contrary to St. 1863, c. 252, § 1, passed at the extra session of tbs legislature in November 1863. Verdict set aside.  