221 F.2d 623 (7th Cir. 1955), 11151, United States v. Nelson

Docket Nº:11151.
Citation:221 F.2d 623
Party Name:The UNITED STATES of America, Plaintiff-Appellee, v. Wayne Edwin NELSON, Defendant-Appellant.
Case Date:April 15, 1955
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 623

221 F.2d 623 (7th Cir. 1955)

The UNITED STATES of America, Plaintiff-Appellee,

v.

Wayne Edwin NELSON, Defendant-Appellant.

No. 11151.

United States Court of Appeals, Seventh Circuit.

April 15, 1955

Page 624

Hayden C. Covington, Brooklyn, N.Y., Victor F. Schmidt, Columbus, Ohio, for appellant.

Timothy T. Cronin, U.S. Atty., Howard W. Hilgendorf, Asst. U.S. Atty., Milwaukee, Wis., for appellee.

Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.

FINNEGAN, Circuit Judge.

A written refusal to be inducted into the United States Armed Forces, signed by registrant Nelson, January 8, 1952, impelled his indictment and trial for violating the Selective Service Act of 1948, as amended, 62 Stat. 622, 50 U.S.C.A.Appendix, §§ 451 et seq., 462(a). His conviction, after waiving trial by jury, and overruled motion for judgment of acquittal are before us on review.

Several observations deserve prefatory treatment in this opinion. After defense counsel, during the proceedings below, conceded that no request had been made for a 'fair summary' of the Federal Bureau of Investigation report on this conscientious objector claim, the trial judge quashed a subpoena duces tecum for that report, citing United States v. Dal Santo, 7 Cir., 1953, 205 F.2d 429. A comment concerning that account of investigation reported by the Department of Justice Hearing Officer, viz.: 'The search failed to disclose any derogatory information respecting the registrant, ' appears in the trial judge's opinion. We think it pertinent at this juncture to recall that in United States v. Nugent, 1953, 346 U.S. 1, 73 S.Ct. 991, 994, 97 L.Ed. 1417, the majority spoke of '* * * a fair resume of any adverse evidence in the investigator's report.' (Italics supplied.)

Nelson registered with his Local Board, January 6, 1949, at 18 years of age, and executed his Selective Service Questionnaire in January, 1950, without any mention of conscientious objection. We think it unnecessary in this opinion to chronicle each step and detail all events culminating in Nelson's ultimate classification I-A. Sometime in late December, 1950, after examination, he was found physically acceptable for military service. In February, 1951, he wrote out answers to questions posed in Form 150 (Special Form For Conscientious Objectors) and certified he was opposed to both combatant and noncombatant service...

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