United States v. McIntyre
| Decision Date | 06 April 1925 |
| Docket Number | No. 4424.,4424. |
| Citation | 4 F.2d 823 |
| Parties | UNITED STATES v. McINTYRE. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John L. Slattery, U. S. Atty., and W. H. Meigs, Asst. U. S. Atty., both of Helena, Mont., and Francis A. Silver, Asst. U. S. Atty., of Butte, Mont. (Maj. Gen. J. A. Hull, Judge Advocate General, of Washington, D. C., of counsel), for the United States.
Lamb & Malloy, of Butte, Mont. (Dan T. Malloy, of Butte, Mont., of counsel), for appellee.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
This is an appeal from an order of discharge on habeas corpus. June 5, 1917, the appellee registered for the draft, under Act May 18, 1917 (40 Stat. 76 Comp. St. §§ 2019a, 2019b, 2044a-2044k), at Butte, Mont., giving his home address as 7 West Pacific street, in that city. December 29, 1917, a questionnaire was mailed to him at that address, and was by him returned on January 5, 1918. The appellee was classified as class 1A, and on May 11, 1918, was reported to the Adjutant General of the state as delinquent. May 17, 1918, form known as 1014 was mailed to him at his home address, directing him to report to the Adjutant General by mail, telegraph, or in person, not later than 5 p. m. on May 28, 1918, and stating that "unless, upon your so reporting to this office, orders rescinding the present order are issued, then from and after the date just specified you shall be in the military service of the United States." The appellee, failing to report as directed, was thereafter apprehended and arraigned before a general court-martial on the charge of desertion from the military service of the United States. The trial resulted in conviction and sentence of dishonorable discharge and imprisonment. The present proceeding was thereafter instituted in the court below to obtain a discharge from such imprisonment.
We are not here concerned with the merits of the case, or with the guilt or innocence of the appellee. We may, however, inquire into the jurisdiction of the military tribunal, and, if the appellee was never in the military service of the United States, that tribunal was without jurisdiction. The court below found that there was no competent proof of the mailing of the notice of induction into the military service of the United States by the Adjutant General, and that any presumption that might arise from the fact of mailing was overcome by the proofs offered by the appellee. We are unable to agree with the court below that there was no competent proof of mailing. The Adjutant General testified that the requisite notice was mailed, and there was no testimony to the contrary. It may be that the witness was testifying from the records in his office, and not from facts within his personal knowledge; but, if so, that fact does not appear from the record before us. His testimony as to the mailing was direct and positive. Furthermore, "it was not necessary to prove the actual physical mailing of the letter, in view of the official record of the fact." United States v. Bullard (C. C. A.) 290 F. 704, 711. If it was incumbent on the government to prove the actual receipt of the notice by the appellee, we would feel constrained to accept the finding of the court below on that issue; but was such proof necessary or indispensable, in order to show that the appellee had been inducted into the military service of the United States?
Section 133 of the Regulations promulgated November 28, 1917, provided that, upon receipt of the report of delinquency from the local boards, the Adjutant General of the state should forthwith notify the persons named therein to report to him for instructions, by mail, telegraph, or in person, not later than a day and hour to be specified in the notice, which day and hour should not be less than 10 days from the date of the notice. The day and hour should be specified by the Adjutant General of the state as the day and hour from and after which the registrants should be in the military service of the United States, unless, upon the registrant reporting as ordered, the Adjutant General should stay or rescind such order into military service. If the order into military service was not stayed or rescinded by the Adjutant General by a subsequent order prior to the arrival...
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