Smith v. United States, 5487.

• Decision Date: 12 November 1946
• Docket Number: No. 5487.,5487.
• Citation: 157 F.2d 176
• Parties: SMITH v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

157 F.2d 176 (1946)

SMITH v. UNITED STATES.

No. 5487.

Circuit Court of Appeals, Fourth Circuit

July 29, 1946.

Writ of Certiorari Denied November 12, 1946.

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.

Irving S. Shapiro, Atty., Department of Justice, of Washington, D. C., and Claud N. Sapp, U. S. Atty., of Columbia, S. C. (Henry H. Edens, Asst. U. S. Atty., of Columbia, S. C., and Robert S. Erdahl, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and CHESNUT, District Judge.

Writ of Certiorari Denied November 12, 1946. See 67 S.Ct. 189.

SOPER, Circuit Judge.

This case returns to this court after a sentence of imprisonment for three years and six months was imposed upon the defendant in the District Court for violation of § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311 by refusing to submit to induction in the armed forces of the United States after he had been classified 1-A and ordered to report for induction by his local board. A prior conviction for failing to report for induction affirmed by this court, was reversed by the Supreme Court. In the earlier case we relied upon the interpretation of the Act announced in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, as it was generally understood by the Courts. See Smith v. United States, 4 Cir., 148 F.2d 288; Estep v. United States (Smith v. United States), 66 S.Ct. 423, 435.

The refusal of the defendant to submit to induction is not disputed. At the trial in the District Court it was stipulated that on September 30, 1943, after undergoing the selective process and the screening process of the armed forces at the induction station, the defendant was accepted for training in service in the United States Army and was ordered to undergo the induction process ceremony but refused to submit to induction and was thereafter released and charged with violation of the Selective Training and Service Act of 1940.

Consequently the only controverted issue at the trial related to the legality of the induction order. The rule applicable to that matter was finally established in the Estep-Smith cases where it was held that upon the trial of a registrant for refusing to submit to induction, judicial review is limited to a determination of whether or not the Draft Board exceeded its jurisdiction; and loss of jurisdiction may occur if the board proceeds arbitrarily and without due regard to the rights of the registrant or makes a classification without basis of fact to support it. The court, however, made clear that if the findings of the board are supported by evidence, they are not reviewable and must be accepted as final even though they may be erroneous.

The principal defenses urged on this appeal are that the District Court should have directed a verdict for the defendant (1) because there was no evidence to support the finding of the board that the defendant was not a minister entitled to exemption from the draft under § 5 of the Act, 50 U.S.C.A.Appendix, § 305, and (2) because the board in violation of Regulations 623.2, 625.2(b) and 627.13 prescribed by the President under § 10 of the Act, 50 U.S.C.A.Appendix, § 310, denied the defendant due process by failing to reduce to writing and to include in the record on the appeal to the board of appeal and to the President of the United States certain oral evidence offered by the defendant in his appearance before the board.

The proceedings before the local board and the evidence presented to it in support of the defendant's claim to exemption as a minister of religion may be summarized as follows: Smith registered with the local board in Columbia, South Carolina on December 24, 1942. On January 29, 1943 he filed his selective service questionnaire in which he stated that he was born October 4, 1924; that he had eight years of elementary schooling and three years of high school and had completed one and one-half years in the study of engineering at the University of South Carolina and had had four years of a home study course for the ministry. He stated that his occupation at the time was majoring in engineering preparatory to a B.S. degree with the intention of taking an examination for a license in engineering. Under the heading of occupational experience, qualification and preferences he stated that his usual occupation or the one for which he was best fitted was the ministry; that the kind of work done is shown in Acts 20:20 and Luke 8:1 in the Bible. He asserted that he was not licensed in a trade or profession but preferred the ministry; that he had been a minister of Jehovah's Witnesses since September, 1938, that is, since he was 14 years of age, and that he had been formally ordained scripturally in September, 1938 as shown by Luke 20:1, 2; John 17:14 and Isaiah 61:1. In addition he said that he was conscientiously opposed by religious training and belief to participation in war and he requested a special form for conscientious objectors to be completed and returned to the local board for consideration. In view of these facts the defendant expressed the opinion in the questionnaire that he should be put in Class 4-D as a minister of religion under the provisions of § 622.44 of the Regulations.

On February 8, 1943, the defendant filed the special form for conscientious objectors in which he reiterated his claim to be a minister. He stated that by reason of his religious beliefs he could not conscientiously bear arms; and that his belief was founded on the Bible which he had studied in well organized classes for four years under the direction of the Watchtower Bible & Tract Society of Brooklyn, New York. He added that he had devoted on the average twenty hours per week for the last four years studying and preaching the gospel of God's kingdom as set forth in the Bible. He stated that he had been a member of the religious sect known as Jehovah's Witnesses since 1938; that the church or congregation which he customarily attended was Kingdom Hall, West Columbia, South Carolina; and that the name of the pastor or leader of the church was H. L. Crout (company servant).

In addition to these documents the defendant filed with the board two affidavits signed and sworn to by about forty-six persons stating that he was a duly ordained minister of religion in the sect of Jehovah's Witnesses; also an occupational questionnaire stating that he was studying engineering at the University of South Carolina and that the completion of the course was indefinite; that he was also studying ministry at home and that he had been in the ministry for four years beginning in 1938 going from door to door and preaching to the people. He also filed a copy of an opinion No. 14 (amended) from National Headquarters of the Selective Service System which showed that the unincorporated body of persons known as Jehovah's Witnesses was considered to constitute a recognized religious sect and that certain members of the organization stood in a relation thereto and to the other members similar to that occupied by regular or duly ordained ministers of other religions.

On April 2, 1943 the defendant was placed in Class 1-A by the local board and received notice of his classification on April 6. He requested a personal appearance and was granted one on April 12. He undertook to demonstrate orally from notes in his possession that he was a minister, whereupon he was asked whether he had these matters written down and when he replied in the affirmative he was told that he need not quote scripture but to file the papers and that the Board would look them over. Thereafter on May 18, 1943 the Board changed his classification from Class 1-A to Class 1-A-O, thereby making him liable for limited training and service as a conscientious objector. The defendant again requested and was granted a personal appearance before the local board on May 25, 1943. The minutes of the local board show that at this meeting there was a lengthy discussion and after due consideration the board unanimously again classified the defendant in Class 1-A. At that time he withdrew his claim to be classified as a conscientious objector.

The testimony as to what occurred at this meeting is of importance because it bears upon the contention of the defendant that he was deprived of due process by reason of the failure of the local board to include what occurred at the meeting in the record of the appeal of the case to the board of appeal. The defendant testified in the court below that at the hearing on May 25, 1943 he went through his selective service file and pointed out that he was claiming classification as a minister of religion and that he was attending college because his father insisted. He explained to the Board that his training and rearing were in the ministry and the work that he did in the ministry was preaching from house to house and preaching in the congregation, and that his intentions at the time were to put his full time in the ministry. He stated that when he was a child his grandparents and mother indoctrinated him in the teachings of Jehovah's Witnesses and that he attended congregational schools and engaged in door to door preaching; that he regularly studied the Bible at home, took the prescribed course of study of the sect and was ordained; that he wanted to go into the full time ministry upon completing high school but had gone to college at his father's insistence; that he had continued to devote so much of his time to ministerial work that he was flunking his engineering courses and that he intended at the end of his second semester to quit the college and devote his full time to missionary evangelical work. He also stated that he was an assistant to the presiding minister and delivered sermons encouraging a greater...