Smith v. United States, 5329.
| Decision Date | 28 May 1945 |
| Docket Number | No. 5329.,5329. |
| Citation | 148 F.2d 288 |
| Parties | SMITH v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Hayden C. Covington, of Brooklyn, N. Y. (Curran E. Cooley, of Anderson, S. C., and Grover C. Powell, of Atlanta, Ga., on the brief), for appellant.
Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C., Irving S. Shapiro, Atty., Department of Justice, of Washington, D. C., and Henry H. Edens, Asst. U. S. Atty., of Columbia, S. C. (C. N. Sapp, U. S. Atty., of Columbia, S. C., and Nathan T. Elliff, Sp. Asst. to Atty. Gen., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
Writ of Certiorari Granted May 28, 1945. See 65 S.Ct. 1406.
This is an appeal from a conviction and sentence under an indictment charging violation of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 301 et seq., in failing to report for induction pursuant to the order of a local draft board. Defendant is a member of the sect known as Jehovah's Witnesses and claims exemption from the provisions of the Act on the ground that he is a minister of religion. This claim was denied by the local board and he was classified 1-A and ordered to report for induction. The appeal presents two questions: (1) Whether the trial court erred in refusing to direct a verdict for defendant on the facts relating to the refusal to report, and (2) whether the court erred in excluding evidence as to the ministerial status of defendant. Both questions, we think, must be answered in the negative.
The facts with respect to defendant's failure to report are as follows: Defendant was ordered by the draft board to report to the board at its office in Columbia, S. C., for induction at 8:30 A. M., September 30, 1943. He made up his mind not to report and so notified his father, who was anxious that he report and be inducted. His father arranged with a state magistrate and two local officers to take defendant by force and carry him to the induction center at the time fixed for induction. On the morning of September 30th, defendant, who lived two miles from the office of the board where he was required to report, was making no effort to report but, between 8 and 8:30 in the morning, was at his home engaged in shaving, and intending thereafter, not to report to the draft board, but to a United States Commissioner and explain why he had not complied with the board's order. While he was so engaged, the magistrate and officers who had been employed by his father arrived at his home and by a show of force compelled him to go with them to the induction center at Fort Jackson near Columbia, S. C., where they turned him over to the officers of the army charged with the duty of inducting draftees. Defendant notified these officers that he was a minister of the Gospel and that he refused to be inducted into the army. He was finger printed and examined by them, but refused to take an oath or go through the induction ceremony, protesting throughout the proceedings that he would not be inducted.
At the conclusion of the induction ceremony in which other draftees participated, defendant was notified that he was in the army, notwithstanding his refusal to be inducted. He was granted a three weeks leave along with the other draftees and was ordered to return to Fort Jackson three weeks later. He returned in accordance with this order but refused to put on the army uniform or obey orders. He was tried by a court martial for disobedience of orders and sentenced to a term of imprisonment but, after the decision in Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L. Ed. 917, was released on habeas corpus. He was then indicted in the court below for failure to report for induction as ordered by the draft board.
Upon the facts as stated, there was no error in refusing to direct a verdict of not guilty; for defendant was guilty, on his own admissions, of failing to report for induction as ordered by the board. Not only does he admit that he did not intend to report and remained at home when he would necessarily have been on his way to the board's office if he had intended to comply with its order, but also that, after he had been forcibly carried to the place of induction, he persistently maintained an attitude of defiance and repeatedly stated that he would not be inducted. To report for induction means to present oneself not only at the appointed place but also in readiness "to go through the process which constitutes induction into the army." United States v. Collura, 2 Cir., 139 F.2d 345, approved in Billings v. Truesdell, 321 U.S. 542, at page 557, 64 S.Ct. 737, 88 L.Ed. 917. Certainly one who has made up his mind not to report for induction and who, after having been dragged by force to the induction center, persistently refuses to go through the process of induction, cannot be said to have reported for induction as ordered by the board, within any possible meaning that can be given to that language.
Defendant makes two arguments which are in large measure inconsistent with each other. One is that the forcible seizure made it impossible for him to report to the board and thus excuses the failure to report; the other, that he was actually present at the induction center and thus substantially complied with the order of the board. A forcible seizure which made it impossible to comply with the board's order would doubtless be a defense; but nothing of the sort is involved here. The seizure made it, not impossible, but possible, for defendant to comply; and, with the opportunity for compliance at hand, he failed to avail himself of it. Likewise, presence at the induction center, rather than at the board's office, would doubtless be sufficient compliance on the part of one who was attempting to comply with the order to report for induction, but not on the part of one who had been carried there against his will and who, being there, persistently refused to be inducted. One ordered to report for induction who presents himself at the place designated with the statement that he does not intend to be inducted at all, can hardly be said to have reported for induction. A fortiori, one who is present at the place of induction only because he is carried there by force, and who defiantly refuses induction throughout the period of his presence, cannot be said, in any reasonable sense, to have reported for such purpose. This should be so obvious as not to require statement.
Directly in point is the decision of the Second Circuit in the case of United States v. Collura, supra, cited with approval by the Supreme Court in Billings v. Truesdell, supra. In that case, where the charge was failure to report for induction, the draftee appeared at the induction station at the appointed hour but stated that he refused to be inducted unless given a guarantee against compulsory vaccination. In affirming a conviction the court said, 139 F. 2d at page 345:
In the case at bar the draftee did not report for the purpose of making a bargain with the military authorities as a condition of induction. He did not report at all. He was forcibly taken to the induction station and, being there, refused unconditionally to be inducted. See also United States v. Longo, 3 Cir., 140 F.2d 848.
On the second question, we think it clear that the trial court was correct in excluding evidence as to the alleged ministerial status of defendant and refusing to charge the jury with regard thereto. Whether the defendant was entitled to exemption from military service or not on the ground that he was a minister of religion, this was a question of fact committed to the determination of the draft board, with appeal to the appeal board and in a limited number of cases to the President, but with no provision for review by the courts. United States v. Grieme, 3 Cir., 128 F.2d 811, 814-815. It was his duty to comply with the board's orders; and, in a prosecution for failure to do so, no defense based on the invalidity of the orders can be entertained. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. Compliance with the board's orders includes submitting to induction,...
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