JAMES M. CARTER, District Judge.
These three cases under the Universal Military Training and Service Act
The three indictments are in substantially the same form, alleging that the
At the trial, with jury waived, the draft board file of each defendant was received in evidence by stipulation and the government rested.
As to Sutter and Daviner, a stipulation was entered into between counsel, that each defendant if called as a witness, would testify that on November 4, 1954, he inspected the Bulletin board at the local board office and that there were not posted on the Bulletin board or at the local board office, any names or addresses of "advisors to registrants within the local board area."
As to Sutter, it was stipulated between counsel that he reported to the local board on September 28, 1953 as ordered and was told to proceed to the Los Angeles County Department of Charities, but that on that day he wrote out and delivered to the board the statement appearing in the board file: "Lo. Board 22. I will not take the jobs that are given me at any time or place."
As to Huha, it was stipulated that he reported to the local board as ordered on October 26, 1953, and was given a slip or told to report to the Los Angeles County Department of Charities within forty-eight hours. The file contains such a slip with the notation, "Mr. Harnish, Chairman of L.B. 68 handed or attempted to hand this address to registrant P. Huha but registrant through (sic) it back on desk and said he wouldn't report since the law said he didn't have to."
It was stipulated Daviner reported to the local board as ordered on October 22, 1953. Daviner would not stipulate further, but voluntarily took the witness stand for questions. He admitted executing on October 22, 1953, the document, reading:
"I will not report to the Los Angeles County Dept. of Charities on the 26th day of October 1953 due to reasons further explained in typewritten statement submitted by myself. Respectfully yours
The file also contains a letter to the Department of Charities from the local board advising that Daviner had been ordered to report for work on October 26, 1953. The inference is clear that on October 22, 1953, Daviner was told to report to the Los Angeles County Department of Charities on October 26, 1953.
The defendants then filed in each case a written motion for judgment of acquittal, the motion was submitted and defendants rested. The three motions are identical and raise interesting and important questions as to the Act and the regulations, their constitutionality as applied, the sufficiency of the indictments and the correctness of the classification given.
Each defendant reported to the local board as ordered and no violation is charged in that respect.
The Sufficiency of the Indictment
Under § 10(b) of the Act, 50 U.S.C.A.Appendix, § 460(b),
Section 6(j) of the Act, 50 U.S.C.A. Appendix, § 456(j), provides in part, that the conscientious objector to non-combatant service shall "be ordered by his local board * * * to perform" (for 24 months) "such civilian work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate and any such person who knowingly fails or neglects to obey any such order from his local board shall be deemed, for the purposes of section 12 of this title [§ 462 of 50 U.S.C.A.App.] to have knowingly failed or neglected to perform a duty required of him under this title."
Section 12 of the Act, 50 U.S.C.A. Appendix, § 462, provides in part, that any person "who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title, * * * shall, upon conviction * * * be punished * * *."
Part 1660 of the Regulations provides generally for civilian work in lieu of induction. § 1660.1 provides in part,
Here the indictments did not charge a failure to report to the local board but specified in detail the registrant's failure to proceed to the work, to report and to remain. In its concluding sentence each indictment states "by the aforesaid conduct defendant did knowingly and wilfully fail and neglect to perform a duty required by him under the Act and the regulations * * *". The indictment also set forth a copy of the "Order to Report for Civilian Work," which specified "work as an institutional helper located at the Los Angeles County Department of Charities, Los Angeles, California."
The "Order to Report for Civilian Work" incorporated by reference in the indictment, recited that the registrant had been found acceptable for civilian work contributing to the national health, safety or interest, and had been assigned to work, at the specified institution. There followed these orders. "You are ordered to report to the local board" fixing a date, "when you will be given instructions to proceed to the place of employment." "You are ordered to report for employment" pursuant to the board's instructions. "To remain in employment" for 24 months, etc. The order concluded, "Failure to report * * * or to proceed to the place of employment * * * or to remain in this employment the specified time * * * will constitute a violation" of the Act. [Emphasis added.]
It is apparent the government framed its indictments on the specific language of the Order and particularly the last paragraph thereof. But it was not necessary to use the exact language of § 1660.30 of the regulations, with its precise statement that failure "to perform civilian work * * *" constitutes neglect or failure to perform a duty. When a registrant followed the conduct described in the indictment, he in fact "failed or neglected to obey an order from his local board to perform civilian work contributing" etc. § 1660.30. Furthermore, the indictment in the final paragraph alleged that by such conduct the defendant knowingly and wilfully failed and neglected to perform a duty required of him by the Act and regulations.
In Hopper v. United States, 9 Cir., en banc 1944, 142 F.2d 181, at page 184, a conscientious objector case, "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", and quoted from Hagner v. United States, 1932, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861, "`The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against
In Elder v. United States, 9 Cir., 1944, 142 F.2d 199, 200, the indictment alleged that defendant having registered, and "`having been theretofore notified to report for work of national importance in lieu of induction'", did on or about a certain date "`knowingly, wilfully * * fail and neglect to perform a duty required by him'" under the Act, in that defendant did "`fail and neglect to report for work of national importance * * *.'" The indictment was held good. Our indictments contain all that is in the Elder indictment and in addition more specific details of the violation.
Other minor questions as to the sufficiency of the indictment remains. Each indictment alleges a specific date on which the defendant failed to (1) proceed to the place of employment, (2) report for work and (3) remain at work. Each date was a few days later than the date on which defendant was ordered to report to the board and did so report. It is argued that the record does not show specifically when defendant was to proceed etc. The first answer is found in the order to report which tells the defendant that he has been assigned to work and where that work is. In each instance this is evidence in the record, at least by inference that on reporting to the local board, defendant was informed when and where to go and all three defendants refused to perform any work at all. § 1642.2 of the regulations provides "when it becomes the duty of a registrant to perform an act * * * the duty or obligation shall be a continuing duty or obligation from day to day * * *". Finally under modern pleading exact dates are not necessary and the proof may show a violation on or about the day alleged. Penny v. United States, 6 Cir., 1954, 213 F.2d 363, 366. That part of the indictments before us that alleged failure to remain for twenty-four months
Although not raised by defendants, the matter of jurisdiction and venue should be considered. Sutter was a registrant of local board 22 in Sacramento County, California; Daviner, of local board 34 in San Joaquin County, California; and Huha of local board 68 in Fresno County, California. Sacramento and San Joaquin counties are in the Northern district of California, Northern Division. Fresno is in the Northern Division of the Southern district of California. 28 U.S.C.A. § 84.
§ 12(a) of the Act, 50 U.S.C.A.Appendix, § 462(a), defining offenses under the Act refers to "conviction in any district court of the United States of competent jurisdiction * * *." The Selective Training and Service Act of 1940, 54 Stat. 894, 50 U.S.C.A.Appendix, § 311, referred to "conviction in the district court of the United States having jurisdiction thereof * * *." We see no substantial differences between the provisions and there are no other provisions or regulations in the matter.
In United States v. Anderson, 1946, 328 U.S. 699, 705, 66 S.Ct. 1213, 1217, 90 L.Ed. 1529, the problem of jurisdiction under the 1940 Act was considered and the court held: "It is, of course, necessary in order to decide where the
In Jones v. Pescor, 8 Cir., 1948, 169 F.2d 853, the defendant was outside the district at the time of the alleged Selective Service violations of failing to report, file questionnaire and advise of changes of address. The court said "Failure to comply with a regulation under the Selective Training and Service Act, or with an order of a local draft board having jurisdiction, constitutes a crime at the place where the compliance must be made." At page 855. [Emphasis added.] See Shurin v. United States, 4 Cir., 1947, 164 F.2d 566, certiorari denied 333 U.S. 837, 68 S.Ct. 608, 92 L.Ed. 1121.
Had defendant been charged with failure to obey the order to report to the local boards, the venue would have been in the district or division of the local boards. We have held that the indictment alleges a failure to perform certain work and that the work was to have been performed in Los Angeles county. Venue was thereafter properly laid in the Southern district of California, even though there were refusals of defendants to perform any work, made at the location of the local boards.
When does the Class I-O Registrant Exhaust the Administrative Process?
The local board is given continuing jurisdiction of registrants in Class I-O. After reporting to work they are reclassified I-W and it becomes the duty of the State Director of Selective Service to see that the registrants perform the work directed for the twenty-four month period specified. § 1660.31 of the Regulations.
Thus, we did not have a problem such as ascertaining the exact break line between civilian and military authority involved in Billings v. Truesdell, 1944, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917.
We need only consider whether the registrant has exhausted his administrative remedy, Falbo v. United States, 1944, 320 U.S. 549, 64 S.Ct. 346, 88 L. Ed. 305; Estep v. United States, 1946, 327 U.S. 114, 115-116, 66 S.Ct. 423, 90 L.Ed. 567; Williams v. United States, 1953, 203 F.2d 85, certiorari denied 345 U.S. 1003, 73 S.Ct. 1149, 97 L.Ed. 1408, and is therefore in a position to raise the question of whether there is any evidence or "basis in fact" to support the classification given herein. Cox v. United States, 1947, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59.
Cases like Edwards v. United States,
Physical examination for Class I-O registrants (as well as for those in I-A-O and I-A) are now conducted prior to order to report for work or induction pursuant to §§ 1628.10-1628.17 of the Regulations. Thus, the administrative procedure for a Class I-O registrant has been completed when he reports to the local board pursuant to an order to report for civilian work.
Reporting to the local board preparatory to departing for the performance of the work ordered,
The defendants contend that the order of the local board ordering them to perform civilian work, and §§ 1660.1 and 1660.20
There is no longer any question as to the constitutionality of the present Act. Richter v. United States, 9 Cir., 1950, 181 F.2d 591, certiorari denied 340 U.S. 892, 71 S.Ct. 199, 95 L.Ed. 647. "The privilege of a native-born objector to avoid bearing arms comes not from the Constitution but from the Acts of Congress", Tyrrell v. United States, 9 Cir., 1952, 200 F.2d 8, 13, certiorari denied 345 U.S. 910, 73 S.Ct. 646, 97 L. Ed. 1346. Butler v. Perry, 1916, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672, demonstrates that the Thirteenth Amendment was neither intended to reduce the duties of our citizens nor to deprive the government of its war powers or its power to provide for the national defense. "The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers. * * *" 240 U.S. at page 333, 36 S.Ct. at page 259.
Cases under the former Act, because of the similarity of its provisions to the present one, are equally persuasive that the statute does not violate the constitution. Roodenko v. United States, 10 Cir., 1945, 147 F.2d 752, certiorari denied 324 U.S. 860, 65 S.Ct. 867, 89 L.Ed. 1418, rehearing denied 324 U.S. 891, 65 S.Ct. 1022, 89 L.Ed. 1438; Hopper v. United States, supra.
Recent decisions are in accord that Congress has the right to require conscientious objectors to perform civilian work in lieu of induction into the army, without violating constitutional provisions. United States v. Niles, D.C. Cal., 1954, 122 F.Supp. 382; United States v. Pomorski, D.C.Mich., 1954, 125 F.Supp. 68; United States v. Smith, D.
Much of defendants' argument is devoted to the meaning of "civilian work contributing to the maintenance of the national health, * * *." It seems patent that the health of the people of the nation is a matter of national concern.
The statute, as applied by the regulations and orders to report for work, presents a dual consideration. Regulation § 1660.1 specifies as suitable civilian work, "Employment by * * * a state * * * or by a political subdivision thereof * * *." And the order to report for work specifies civilian work as an "institutional helper" at the "Los Angeles County Department of Charities." This is the extent to which the statute has been applied on the record of these cases.
In a criminal case we may take judicial notice of state statutes. Thorton v. United States, 5 Cir., 1924, 2 F.2d 561, affirmed 271 U.S. 414, 46 S.Ct. 585, 70 L.Ed. 1013; United States v. Chaplin, D.C.Cal., 1944, 54 F.Supp. 926. Los Angeles County is a political division of the State of California by state statutes. California Government Code § 460, 23000, 23001, 23011, 23012, 23119. We may also take judicial notice of matters of common knowledge, see Greeson v. Imperial Irrigation District, 9 Cir., 1932, 59 F.2d 529, including the fact that Los Angeles County has a Department of Charities and that the department operates various institutions for the aged, sick, needy and infirm, including the Los Angeles County Hospital.
The words "institutional helper" clearly means one who helps or assists in an established institution of the Department of Charities. Based on the cases primarily cited, it is clear such work is "civilian work contributing to the maintenance of the national health, safety or interest * * *".
It is suggested that the work to be assigned might consist of polishing cuspidors in the corridor of a hospital. On this we can only speculate. The defendants may only attack the statute as actually
"A presumption of regularity attaches to official proceedings and acts; it is a well settled rule that all necessary prerequisites to the validity of official action are presumed to have been complied with, and where the contrary is asserted it must be affirmatively shown." Koch v. United States, 4 Cir., 1945, 150 F.2d 762, 763, citing Lewis v. United States, 279 U.S. 63, 49 S.Ct. 257, 73 L. Ed. 615; Eaker v. United States, 10 Cir., 76 F.2d 267; Donahue v. United States, 9 Cir., 56 F.2d 94, and concluding, "In United States v. Fratrick, 7 Cir., 140 F.2d 5, the court applied this doctrine in a Selective Service case, observing that it could be relied upon to dispense with the necessity of introducing proof to establish compliance with the statute."
We do not consider whether the Los Angeles County Department of Charities actually participates in the handling of federal funds supplied to the states under federal law
Posting Notice of Names of Advisors
Defendants contend that there was a failure by the local board to post the names of advisors to registrants [Reg. 1604.41 quoted supra]. The violation charged to defendants occurred in the fall of 1953 and the draft board proceedings of course antedated the violations. The defendants' showing here was that on "November 4, 1954" no such notice was posted. Clearly there is no merit to the contention.
However, board members, clerks, registrars and an appeal agent were available to assist registrants. No showing was made for any requests for assistance which was refused. United States v. Dorn, D.C.Wis., 1954, 121 F.Supp. 171, held that where no appeal was taken for a classification, failure to post names of advisors was not an error constituting any defense to the criminal prosecution.
A review of the draft board files of the three defendants show that each was classified I-O and no appeal was taken. Defendants therefore did not exhaust their administrative remedies and cannot now question their classification. Falbo v. United States, supra; Estep v. United States, supra; Williams v. United States, supra; Rowland v. United States, 9 Cir., 1953, 207 F.2d 621.
Each defendant by his questionnaire showed he was a full time civilian worker; each claimed he was studying for the Ministry under the guidance of Jehovah's Witnesses; each claimed, in answering his questionnaire, to be a conscientious objector to war, and both combatant and non-combatant participation; each filled out and signed the special form for conscientious objectors.
The court finds no error in the proceedings and there is a basis of fact for the classification. Cox v. United States, 1947, 332 U.S. 442, 68 S.Ct. 115, 92 L. Ed. 59. Defendants claimed to be conscientious objectors to war in all forms; they were classified as such in class I-O; they were ordered to perform suitable civilian work as I-O registrants and they
§ 1660.20 is headed "Determination of Type of Civilian Work To Be Performed and Order by Local Board to Perform Such Work." Pertinent parts have been heretofore set out in the opinion.
Witness the Social Security Act, Ch. 7, Title 42, U.S.C.A. and particularly Subchapter I, §§ 301-306, Grants to States for Old Age Assistance; Subchapter IV, §§ 601-606, Grants to States for Aid to Dependent Children; Subchapter V, §§ 701-731, Grants to States for Maternal and Child Welfare; Subchapter X, §§ 1201-1206, Grants to States for Aid to the Blind; Subchapter XIV, §§ 1351-1355, Grants to States for Aid to the Permanently and Totally Disabled.
Note that under § 302, Title 42, U.S. C.A., old age assistance, after approval of a plan, is administered by the state. In California the administration of old age assistance has been delegated to the Counties, Welfare and Institutions Code, § 2022, under the supervision of the State Department of Social Welfare, Welfare and Institutions Code, §§ 2140-2141.