United States v. Garth

• Decision Date: 04 November 1964
• Docket Number: Crim. No. 11676-N.
• Citation: 239 F. Supp. 164
• Parties: UNITED STATES of America, Plaintiff, v. Huram Erskine GARTH, alias Huram X, Defendant.
• Court: U.S. District Court — Middle District of Alabama

239 F. Supp. 164

UNITED STATES of America, Plaintiff, v. Huram Erskine GARTH, alias Huram X, Defendant.

Crim. No. 11676-N.

United States District Court M. D. Alabama, N. D.

November 4, 1964.

Ben Hardeman, U. S. Atty., and J. O. Sentell, Asst. U. S. Atty., Montgomery, Ala., for plaintiff.

Solomon S. Seay, Jr., Montgomery, Ala., court-appointed attorney for defendant.

JOHNSON, District Judge.

The motion to dismiss the indictment in this case, filed herein on October 29, 1964, and by leave of this Court amended on October 30, 1964, is now submitted. The submission is upon the issues as raised in the motion and the evidence (consisting of oral testimony of several witnesses and the exhibits thereto) offered in support of said motion and in opposition thereto. Upon this submission, it appears that the defendant presents two general bases for his contention that the indictment should be dismissed: (1) That the Universal Military Training and Service Act is unconstitutional and that its enforcement as to this defendant is arbitrary and in violation of his constitutional rights, and (2) that the grand jury which indicted this defendant on September 9, 1964, for violating the Universal Military Training and Service Act (50 App. U.S.C. § 462) was illegally drawn, illegally constituted, and the members thereon were illegally selected by the jury commissioners through a system designed to discriminate and having the effect of discriminating against members of the Negro race.

The constitutionality of the Universal Military Training and Service Act has been determined by the courts of the United States upon many occasions. United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417, rehearing denied 346 U.S. 853, 74 S.Ct. 66, 98 L.Ed. 367; United States v. Henderson, 7 Cir., 180 F.2d 711, cert. denied 339 U.S. 963, 70 S.Ct. 997, 94 L.Ed. 1372; United States v. Lambert, 3 Cir., 123 F.2d 395; United States v. Kime, 7 Cir., 188 F.2d 677, cert. denied 342 U.S. 823, 72 S.Ct. 41, 96 L.Ed. 622. The constitutionality of the specific section of the military training act under which this indictment is laid has also been passed upon many times. Warren v. United States, 10 Cir., 177 F.2d 596, cert. denied 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584; Dodez v. United States, 6 Cir., 154 F.2d 637; Seele v. United States, 8 Cir., 133 F.2d 1015. In connection with the theory of the defendant that his classification was arbitrary and without any basis in fact, the evidence in this case is without dispute that the defendant was notified by his Selective Service Board concerning his classification. He failed to avail himself of any of the administrative appellate procedures, and at the time of registering he had been delinquent for a period of approximately four years. The evidence is without dispute that the defendant failed to exhaust his administrative remedies, and, in accordance with the established law, is therefore precluded from challenging his classification in this proceeding. United States v. Balogh, 329 U.S. 692, 67 S.Ct. 625, 91 L.Ed. 605; Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59; Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. It follows, therefore, that there is absolutely no basis in fact or in law in support of the defendant's contention that the Universal Military Training and Service Act and/or the rules, regulations and directions duly made pursuant thereto and/or the application of the Act as to his particular case are unconstitutional or are being unconstitutionally applied.

As to the defendant's contentions that the grand jury which returned the indictment in this case was illegally drawn, that the jury box was not legally maintained in accordance with the law, that the grand jury was not legally summoned, and that the jury commissioners for this district, in the performance of their duties, had systematically excluded the names of members of the Negro race from the jury box, the evidence presented to this Court in this proceeding not only completely and absolutely fails to sustain any such contentions, but, to the contrary, it shows, without any doubt, that the jury commissioners in this district have complied with the law in every respect and have conscientiously and effectively applied the same standards in the selection of members of the Negro race for jury duty that were applied to members of the white race. This Court recognizes that there is no question that any exclusion or discrimination against members of a particular political or economic group, race, or sex, by officers in charge of selecting and summoning jurors, is in contravention of the constitutional right to a jury trial and of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. This basic constitutional principle was thoroughly reviewed and restated by Chief Justice Hughes in Norris v. State of Alabama (1935), 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. It has been restated by the highest courts of this land many times. Avery v. State of Georgia (1953), 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Brown v. Allen (1953), 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Reece v. State of Georgia (1955), 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; Eubanks v. State of Louisiana (1958), 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991. Upon many occasions, the Court of Appeals for this circuit has applied this constitutional principle. United States ex rel. Goldsby v. Harpole (1959), 5 Cir., 263 F.2d 71, cert. denied 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78; United States ex rel. Seals v. Wiman (1962), 5 Cir., ...