DESERTION. An offence which consists in the abandonment of the public service, in the army or navy, without leave.
An absence without leave, with the inten tion of returning, will not amount to deser tion; Inhabitants of Hanson v. Inhabitants of South Scituate, 115 Mass. 336 ; Cloutman v. Tunison, 2 Sumn. 373, Fed. Cas. No. 2,907; Coffin v. Jenkins, 3 Sto. 108, Fed. Cas. No. 2,948. An unauthorized absenting of himself from the military service by an officer or soldier with the intention of not returning. It may consist in an original absenting with out authority, or in an overstaying of a de fined leave of absenCe. Davis Mil. L. 420. To establish the offense, the fact of the unau thorized voluntary withdrawal, and the Pit tent permanently to abandon the service, must both be proved; Dig. J. Adv. Gen. 337.
In the navy absence without leave, with a probability that the person does not intend to desert, shall at first be regarded as strag gling, but at the end of ten days as deser tion. Reg. Navy 815.
A deserter from the navy is, upon convic tion, forever incapable of holding any of fice of trust or profit under the United States or of exercising any rights of citizens thereof. R. S. §§ 1996, 1998. In time of war, the punishment may be death, or as the court-martial may adjudge, and in time of peace, the above.
The act by which a man abandons his wife and children, or either of them.
Wilful desertion, as the term is applied in actions for divorce, is the voluntary separa tion of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justifica tion either in the consent or wrongful con duct of the other. Sisemore v. Sisemore, 17 Or. 542, 21 Pac. 820. If the wife leaves the husband in consequence of a mere expres sion on his part that she can go where she likes, and refuses to return at his request, the husband is not guilty of desertion; 84 L. T. 272; 65 J. P. 246.
On proof of desertion, the courts possess power under statute, in many states, to compel support of the wife. And a con tinued desertion by either husband or wife, after a certain lapse of time, entitles the party deserted to a divorce, in most states.
There must, however, be an actual and intentional withdrawal from matrimonial co habitation for a statutory period, against the consent of the abandoned narty and I without justification ; Tiffany, Dom. Rel. 181; and an intention to desert in the mind of the offender; Bennett v. Bennett, 43 Conn, 313; Latham v. Latham, 30 Gratt. (Va.) 307; Ap
peal of Sowers, 89 Pa. 173; Bish. Mar. Div. & Sep. 1687 ; 5 Q. B. D. 31; Bradley v. Bradley, 160 Mass. 258, 35 N. E. 482; where parties continue to live together as husband and wife and other marital duties are• ob served, a refusal to occupy the same bed does not by itself constitute desertion ; Segel baum v. Segelbaum, 39 Mimi. 258, 39 N. W. 492.
Desertion is established by proof of a re fusal to commence Pilgrim v. Pilgrim, 57 Ia. 370, 10 N. W. 750 ; a refusal to renew cohabitation, on request of the oth er party; Hanberry v. Hanberry, 29 Ala. 719 ; Fellows v. Fellows, 31 342 ; Newing v. Newing, 45*N. J. Eq. 498, 18 Atl. 166; Wil liams v, 'Williams, 130 N. Y. 193, 29 N. E. 98, 14 L. R. A. 220, 27 Am. St. Rep. 517; Sowers's Appeal, 89 Pa. 173 ; causing a sep aration, by driving the other away, or by cruel conduct which has that effect; 14 Ct. of Sess. Cas. (4th Series) 443; Kinsey v. Kinsey, 37 Ala. 393; Johnson v. Johnson, 125 Ill. 510, 16 N. E. 891; Shrock v. Shrock, 4 Bush (Ky.) 682 ; Lynch v. Lynch, 33 Md. 328; Lea v. Lea, 99 Mass, 493, 96 Am. Dec. 772 ; v. Warner, 54 Mich. 492, 20 N. W. 557; Vickar v. McVickar, 46 N. J. Eq. 490, 19 Atl. 249, 19 Am. St. Rep. 422; refusal by the wife to follow the husband when changes his residence ; Hardenbergh v. 14 Cal. 654; Kennedy v. Kennedy, 87 Ill. 250; Hunt v. Hunt, 29 N. J. Eq. 96; Beck v. Beek, 163 Pa. 649, 30 Atl.. 236;. Franklin v. Frank lin, 190 Mass. 349, 77 N. E, 48, 4 L. R. A..(N., S.) 145, 5 Ann. Cas. 851; Schuman v. Schu man, 93 Mo. App. 99; unless‘ there be good reason ; Buell v. Buell, 42 Wash:277, 84 Pat. 821; the mere refusal is not enough ; Horn v. Horn, 17 Pa. Super. Ct. 486. But a separation by mutual consent is .not deser tion; Beller v. Beller, 50 Mich. 49, 14 N. W. 696 ; Chipchase v. Chipchase, 48 N. J. Eq. 549, 22 Atl. 588; Ingersoll v. Ingersoll, 49 Pa. 249, 88 Am. Dec. 500; Throckmorton v. Throckmorton, 86 Va. 768, 11 S. E. 289 ; Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166; neither is non-cohabitation; Jones v. Jones, 13 Ala. 145 ; Pidge v.. Pidge, 3 Mete. (Mass.) 257; Scott v. Scott, Wright (Ohio) 469 ; Burk v. Burk, 21 W. Va. 445; to render it desertion withdrawal of consent must be shown; Currier a:Currier, 68 N. J. Eq. 797, 64 Atl. 1133; nor a refusal by the husband to follow the wife to a new residence; for it is her duty to follow him ; Frost v. Frost, 17 N. H. 251.