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UNITED STATES v. DOWNER

No. 210.

139 F.2d 761 (1944)

UNITED STATES ex rel. BRANDON v. DOWNER, Colonel, U. S. A.

Circuit Court of Appeals, Second Circuit.

January 7, 1944.

Attorney(s) appearing for the Case

Julien Cornell, of New York City, for appellant.

Harold M. Kennedy, of Brooklyn, N. Y. (Vine H. Smith and Anthony G. Greco, both of Brooklyn, N. Y., of counsel), for appellee.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. Were it not for the incident of the eye examination we would be obliged to reverse, for in that event appellant would unquestionably have been a conscientious objector within the statute as we recently construed it in United States v. Kauten, 2 Cir., 133 F.2d 703, 708. The Appeal Board, according to the testimony of its chairman, gave as one ground for its decision an interpretation opposed to ours. But the...

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