HEALY, Circuit Judge.
This appeal is from a judgment of conviction under § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 311. On an earlier hearing, 142 F.2d 167, the judgment was reversed on the ground of the insufficiency of the indictment. A rehearing was granted and the case was again argued, this time before the court sitting en banc. In view of the different result now reached we deem it advisable fully to recite the facts and to state our conclusions somewhat more at length, perhaps, than the gravity of the questions justifies.
Appellant is a native born citizen of the United States, and at the time of his registration under the Selective Service Act in October, 1940, he was twenty-two years old. He was then residing in Yavapai County, Arizona, of which Prescott is the county seat. On November 19, 1940, he filed with the Selective Service Board at Prescott his questionnaire showing the above facts and describing himself as a farm laborer and cattle raiser and as being unmarried and without dependents. In the questionnaire he stated that he is not a minister of religion and does not customarily serve as a minister, but that he is one of Jehovah's Witnesses and as such is entirely "neutral to the affairs of this world."
He was directed to report for physical examination, was examined, and was found fit for general service. He was thereupon, on December 7, 1940, placed in Class I-A
In May, 1941, the National Director of the Selective Service System directed appellant's assignment to work of national importance in the civilian camp at Glendora, California. On June 11, 1941, an order to report for such duty, entitled in the name of the President of the United States and signed by a board member, was mailed him.
Next day, June 20, 1941, he appeared before the board and the members thereof interrogated him, apparently for the purpose of satisfying themselves whether there was any ground for considering his claim to be a minister and to determine his good faith or the lack of it.
On June 22, 1941, at the hour specified in the order requiring appellant to report, he presented himself to the board's administrative officer who again instructed him that it was his duty to go to the Glendora camp. His transportation and means for obtaining meals on the journey were tendered him but he declined to accept them, stating that he was appealing his case to state and national authorities and was not going to camp. It appears to have been his position then, as it was later at the trial, that he had the right to disobey while presently appealing from a classification
Thereafter the board brought the matter to the attention of the United States attorney, and appellant was indicted, tried, and convicted under § 11 of the Act providing that "any person charged as herein provided with the duty of carrying out any of the provisions of this Act, or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty," shall upon conviction be punished, etc.
We append the indictment in full in the footnote.
The indictment charged the crime in the language of the statute, with particulars of the direction given and disobeyed and the time and place of the disobedience. We think the essential elements of the offense are stated, if not directly, certainly by implication. In Crutchfield v. United States, 9 Cir., 142 F.2d 170, we held good, in the absence of objection, an indictment less specific, perhaps, than the present. And in United States v. Messersmith, 138 F.2d 599, November 11, 1943, the Court of Appeals of the Seventh Circuit held sufficient an evidently similar indictment saying: "Defendant contends that the indictment is vague and uncertain. It charges that defendant was duly assigned to work of national importance under civilian direction; that the Board directed him to report for such service and that he knowingly, intentionally and willfully failed to comply. This is a valid averment of violation of the law and fully advises defendant of the nature and character of the charge against him."
The courts are admonished by § 1025 of the Revised Statutes, 18 U.S.C.A. § 556, that "no indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant."
At least since Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861, the federal courts have determined the sufficiency of criminal pleadings on the basis of practical as opposed to technical considerations. As said by the court in
In the Hagner case the defendant was indicted in the District of Columbia for using the mails to defraud. The charge was that in the execution of the fraudulent scheme he had deposited certain mail matter in the United State Post Office in Pennsylvania, addressed to a person in the District of Columbia. The indictment did not state, in conformity with the statute, that he did "knowingly cause [the letter] to be delivered by mail according to the direction thereon." After conviction the defendant moved in arrest of judgment on the ground that while the indictment showed an offense in Pennsylvania, it failed to charge any offense within the District of Columbia. In support of the indictment the court had recourse to the well known evidentiary presumption that a letter, placed in the post office and properly directed, was actually received by the person to whom it was addressed. "While, therefore," said the court (285 U.S. at page 431, 52 S.Ct. at page 419, 76 L.Ed. 861), "the indictment does not in set terms allege delivery of the letter, a presumption to that effect results from the facts which are alleged." In holding the indictment sufficient, the court cited § 1025 of the Revised Statutes, heretofore quoted.
Many holdings of a cognate character, adhering to the mandate of the quoted statute, are cited by the court in the Hagner opinion, among these being Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; Olsen v. United States, 2 Cir., 287 F. 85; Cohen v. United States, 6 Cir., 294 F. 488; Gay v. United States, 5 Cir., 12 F.2d 433; Musey v. United States, 5 Cir., 37 F.2d 673; Phipps v. United States, 4 Cir., 251 F. 879; Stephens v. United States, 9 Cir., 261 F. 590; Grandi v. United States, 6 Cir., 262 F. 123.
As recently as the present year the Court of Appeals of the Fourth Circuit in Nye v. United States, 137 F.2d 73, speaking through Judge Parker, has reviewed the rule of the Hagner case and its own earlier decision of similar import in Martin v. United States, 4 Cir., 299 F. 287. Said Judge Parker in the Nye opinion (137 F.2d at page 76): "Following the decision in the Martin case we have consistently followed the rule there laid down, sustaining under a variety of circumstances indictments drawn in general terms where they set forth the ingredients of the offense as defined by statute with sufficient definiteness and certainty to apprise the defendant of the crime charged and to protect him against further prosecution for the same offense." (citing cases).
Another forceful recognition of the modern rule is found in an opinion of Judge Learned Hand in United States v. Polakoff, 2 Cir., 112 F.2d 888, 134 A.L.R. 607, a prosecution involving a charge of conspiracy to obstruct justice. Said Judge Hand (112 F.2d at page 890, 134 A.L.R. 607): "The indictment merely alleged that the accused conspired `to influence and impede the official actions of officers in and of the United States District Court * * * in order that said Sidney Kafton would receive a sentence of not more than one year and one day'. The challenge is that it should have specified who were the `officers' that were to be so `impeded.' We do not see why, if the accused were really in ignorance of this detail, they could not have been fully protected by a bill of particulars. Decisions such as Heaton v. United States, 2 Cir., 280 F. 697, and Kellerman v. United States, 3 Cir., 295 F. 796, are of doubtful service today, when objections which do not go to the substance of a fair trial no longer get much countenance. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; Berger v. United States, 295 U.S. 78, 84, 55 S.Ct. 629, 79 L.Ed. 1314; Crapo v. United States, 10 Cir., 100 F.2d 996, 1000."
This court, too, has more than once announced the principle stated in the foregoing
We hold that the indictment is sufficient and that the commission of the offense was amply established.
A few points remain to be noticed. Appellant attacks the Selective Service Act as unconstitutional on the ground that it prohibits the free exercise of religion, deprives appellant of liberty and property without due process, and condemns him to involuntary servitude not as punishment for crime. Also that the Act delegates legislative powers. These propositions, in one guise or another, have been advanced again and again, both in this and in the first World War, and have uniformly met with rejection. Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918 C, 361, Ann.Cas.1918B, 856; Goldman v. United States, 245 U.S. 474, 38 S.Ct. 166, 62 L.Ed. 410; O'Connell v. United States, 253 U.S. 142, 40 S.Ct. 444, 64 L.Ed. 827; United States v. Stephens, D.C., 245 F. 956; United States v. Herling, 2 Cir., 120 F.2d 236. Congress and the selective service authorities alike have been considerate in their treatment of those possessing scruples against participation in war. Surely it is not expecting too much to require of them that they do civilian work of national importance at a time when their brothers, under the same compulsion, are giving their lives for them and for the Nation. As we have seen, appellant was accorded due process of law. The board did not act arbitrarily, either in classifying him or in directing him to report for service in line with his classification.
Appellant assigns as error numerous rulings on the admission of evidence. His objections were to exhibits comprising his signed questionnaire, his conscientious objector report, and other documents relating to his registration and sufficiently identified as official records of the selective service board. There was no error in admitting these exhibits.
The judgment is affirmed.
MATHEWS, Circuit Judge (concurring in the result).
Appellant was indicted for violating § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311, and moved to quash the indictment. The motion was denied. Appellant pleaded not guilty and was tried. At the close of appellee's evidence, appellant moved for a directed verdict. The motion was denied. Thereafter appellant introduced evidence, the case went to the jury, and appellant was convicted, was sentenced and has appealed.
Twelve alleged errors are assigned. Assignment 1 is that the trial court erred in denying appellant's motion to quash the indictment. The denial of such a motion is not reviewable.
Assignments 2-11 are that the trial court erred in admitting evidence. These assignments do not, as required by Rule 2(b) of our rules governing criminal appeals, "quote * * * the full substance of the evidence admitted." Hence these assignments need not be considered.
Assignment 12 is that the trial court erred in denying appellant's motion for a directed verdict at the close of appellee's
The judgment should be affirmed.
DENMAN, Circuit Judge (dissenting).
I agree with the majority that it was our duty to examine the transcript of testimony admitted as part of the record upon the stipulation of counsel and quoted from by the appellee in support of its contention that the court had not erred in denying appellant's motion for an instructed verdict because of failure to present evidence showing the offense was committed.
I am unable to agree with Judge MATHEWS' concurring opinion that we cannot consider, what the Government considered and relied upon on the rehearing, namely, the motion for such an instruction, because it does not appear in the bill of exceptions that the motion was made at the conclusion of the evidence. We have held the exact contrary. In Bailey v. United States, 9 Cir., 13 F.2d 325, in reversing the judgment of the lower court finding the defendant guilty of defrauding the United States, Judge Rudkin's opinion states "We are * * * aware there was no request for an instructed verdict at the close of the testimony, as suggested by counsel; but if there is no competent testimony to support the verdict of guilty, and more especially if it appears affirmatively that no crime has in fact been committed, the right and duty of this court to order a reversal is not open to question." (Emphasis supplied.)
If there be any group of cases where the requirement of 28 U.S.C.A. § 391 to ignore technical defects should be observed, it is in those of the conscientious objectors. The Supreme Court has made clear enough the wrong in the approach of the trial of Jehovah's Witnesses as if they are all draft dodgers "who should be sent to the front line trenches." A great part of the youth of that religious organization belong to the generation whose adolescence came in the period between the first and second World Wars. That was the period when parents proclaimed "We did not bring our boy into the world to become a soldier." Mothers drilled into their sons the horror of war in which they would have to maim and kill their fellow man.
No doubt draft dodgers hypocritically avail themselves of a pretended acceptance of a religion based upon such principles. However, it is but natural that such a period with such teachings in American families would make the horror and wrong of war a part of the compelling moral convictions of many of their youth.
There is nothing in the evidence of this case to warrant a doubt as to Hopper's sincerity or for the suggestion that he did not tell the truth when he said he had not received a notice of his requested classification. That, under the rule established by the majority, was entirely irrelevant to his guilt. He cannot complain of the failure to receive a notice that he was placed in the very classification for which he applied. In the absence of the judge's instructions it is unfair to Hopper to assume that the judge did not so instruct the jury and hence take from its consideration the question of Hopper's veracity. His testimony at the trial and that of other witnesses that he was a duly appointed minister in his religion and that he had been preaching its doctrines prior to his application for reclassification as such a minister was not questioned.
It is my opinion that Hopper was entirely justified in his failure on June 22, 1941, to go to the camp to which the board had ordered him. This is because only a registrant in class IV-E is subject to such an order. Before June 22nd, the effective date of the order, that is on June 20th, the board took him from that classification by entertaining his petition for reclassification in IV-D, a minister of religion, and hence subject to no board order. Thereafter they had not classified him "anew" in either IV-D or IV-E as required by the then regulations.
Prior to May 28, 1941, on an application for reclassification the registrant continued in his prior classification during the reclassification proceeding. The regulation appearing at pages 4449-50 of the Code of Federal Regulations, Supplement 1940, Title 32, provides
"§ 603.387 Reconsidering Classifications. Upon receiving new evidence the local board may at any time before induction reconsider the classification of any registrant. If the local board places the registrant in a different classification, the board shall mail a Notice of Classification (Form 57) to the registrant and shall notify the government
About three weeks before June 22nd, when he failed to report, Regulation 603.387 was significantly amended by Executive Order of May 28, 1941, 6 Fed.Reg. 2603. The portion concerning a continuing classification disappeared. Instead, the May 28th Order provided, in Regulation 385, that no classification is "permanent." 386 gives the board the power to reopen the classification on its own motion. 387 and 387(b) provide that in such a reclassification proceeding the classification shall be considered "anew" with the same right of appearance as at the original classification and its "determination shall be, and have the effect of, a new and original classification even though the registrant is again placed in the class that he was in before the case was reopened." (Emphasis supplied.)
The bill of exceptions shows that at the conclusion of the Government's case it offered evidence, uncontradicted in the transcript of the entire case, that such an application was entertained in a formal proceeding by the board entitled
"Proceedings Before the Local Board of Yavapai County, June 20, 1941
"Present: Alfred B. Carr, Chairman, Lauren V. Seares, Joseph W. Berg, Egbert K. Dutcher, Members, and Nellie G. Prince, Stenographer.
"Order No. 217
"In the Matter of the Application of Robert Earl Hopper, Jr., for Classification as a Minister of Religion, and his Application for Extension of Time within which to Appeal the Decision of the Local Board of Yavapai County."
In that proceeding Hopper suffered from the want of counsel denied him by the regulations, and he and the witness he offered made a poor showing. It well could have warranted his "being again placed" in IV-E "the class that he was in before" the application was considered. While the rule gave him the right to appeal it could be argued that it would have been of no avail. Quite likely the board was not aware of the change in the regulation by the Executive Order of three weeks before and hence failed to reclassify.
That, however, is entirely outside the question whether we, in effect, shall send an innocent man to prison by affirming a wrongful conviction. The fact is that he had been unclassified and was not shown to be reclassified "again" and "anew."
On the Government's showing, on June 22, 1941, when Hopper failed to report, he was not in any class on which a "duty" under 50 U.S.C.A.Appendix, § 311 could be created requiring him to respond to any board's order and hence that failure constituted no crime. The judgment should be reversed.