Williams v. United States, 13256.

• Decision Date: 15 June 1953
• Docket Number: No. 13256.,13256.
• Parties: WILLIAMS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

203 F.2d 85 (1953)

WILLIAMS v. UNITED STATES.

No. 13256.

United States Court of Appeals Ninth Circuit.

April 2, 1953.

Writ of Certiorari Denied June 15, 1953.

Jerry J. O'Connell, Great Falls, Mont., for appellant.

Dalton Pierson, U. S. Atty., and H. D. Carmichael, Asst. U. S. Atty., Butte, Mont. and Emmett C. Angland, Great Falls, Mont., for appellee.

Before STEPHENS and POPE, Circuit Judges, and McCORMICK, District Judge.

Writ of Certiorari Denied June 15, 1953. See 73 S.Ct. 1149.

STEPHENS, Circuit Judge.

Wiley James Williams registered under the Selective Service Act of 1948, 62 Stat. 604, now the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451, et seq., on September 7, 1948. He requested and received a Conscientious Objector form which he filed with his local Board on November 1, 1948. On August 8, 1950, Williams was classified 1-A. Thereupon he requested a personal hearing by his local Board in connection with his claim that he was a conscientious objector. On September 1, 1950, after his hearing had been held, he was notified that his request for a conscientious objector classification had been denied and that he had been retained in class 1-A. He did not appeal.

On October 2, 1950, Williams, as a registrant, was given an armed forces physical examination under the Board's authority and was found physically fit for service. On the following day, October 3, 1950, he notified the clerk of the Board that he had been married since July 13, 1950. He alleges that the clerk told him that "he would be reconsidered and given a different classification." Registrant was not reclassified, but was ordered to report at a designated induction center for induction on December 14, 1950, but he did not report. Thereafter he was indicted for wilfully failing and refusing to perform a duty required by the Selective Service Act of 1948 and the Rules and Regulations issued pursuant to the Act, in that "he evaded and refused to submit to induction and to be inducted into the Armed Forces of the United States." He was tried, convicted and sentenced. He appeals, and specifies twenty-seven points of error.

Appellant in his first point alleges that he was denied due process of law by the court's refusal to grant a continuance pending his attorney's recovery of his health. The granting of a continuance is not a matter of right, but is always within the sound discretion of the court. Nor will the court's exercise of its discretion be disturbed unless it is abused to the prejudice of the complaining party. Heay v. Phillips, 9 Cir., 1952, 201 F.2d 220. The record indicates that the trial was held thirteen days after the request for a continuance was denied; and there is no showing that appellant made any attempt during that time to substitute counsel. More to the point, the record discloses a sustained, vigorous, and alert defense by appellant's attorney during the trial. There was no error in refusing to grant a continuance.

Appellant's points 3, 18, 19, 20 and 24 all deal with the allegation that the government failed to prove the crime charged. The indictment was laid under 50 U.S.C.A.Appendix, § 462(a) and was entitled "Failure to Report for Induction". It specifically charged appellant as follows:

"On or about the 14th day of December, 1950, in the District of Montana, Wiley James Williams knowingly and wilfully failed and refused to perform a duty required of him under the Selective Service Act of 1948 and the Rules and Regulations issued pursuant to said Act, in that he evaded and refused to submit to induction and service and to be inducted into the Armed Forces of the United States."

Appellant takes the position that the government proved only that appellant had not reported to the local Board for transportation to the induction center, and that such proof falls short of the charge in the indictment that appellant "refused to submit to induction". Appellant argues that since his actual induction is contingent upon his passing the examinations at the induction center as to physical, mental, and moral fitness, his failure to report does not amount to a refusal to be inducted. That argument is supported neither by logic nor the law. A local Board's order to a registrant to report for induction marks the culmination of the civilian administrative authority under the Selective Service Act. At that point the registrant has been selected by the civilian authorities for military service.

It is true that the armed forces at the induction center may reject a selectee who does not meet their standards. However, the authority of the armed forces to accept or reject a selectee does not in any way affect the selectee's duty to obey the order of his local civilian Board. The discretion retained by the armed forces does not have the effect of changing a local Board's order to report for induction into two separable orders: one to report to the induction center, the other to submit to induction. Of course, the command to submit to induction is the substance of the order, while the command to go to the induction center is procedural. Billings v. Truesdell, 1944, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917; Estep v. United States, 1946, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. The selectee's bounden duty is to be inducted and his wilful absence from the designated place of induction is a definite refusal to be inducted. Proof that appellant wilfully stayed away from the induction center with full knowledge of the order was sufficient to prove the allegation of the indictment.

Appellant further contends that the district court erred in refusing to admit evidence to sustain his...