Kessler v. United States
| Decision Date | 13 January 1969 |
| Docket Number | No. 26049.,26049. |
| Citation | 406 F.2d 151 |
| Parties | Winburn Carson KESSLER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard N. Hubert, Haas, Holland, Freeman, Levison & Gibert, Atlanta, Ga., for appellant.
Charles L. Goodson, U. S. Atty., Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.
Before BELL and COLEMAN, Circuit Judges, and HENDERSON, District Judge.
This appellant was convicted of refusing, on April 6, 1967, to be inducted into the armed forces of the United States, in violation of 50 App. U.S.C. 462. Although the record shows without dispute that Kessler was highly religious and had been previously convicted of no offense other than failing to yield the right of way, he was sentenced to the maximum, five years imprisonment. Because the record undoubtedly shows that the denial of conscientious objector classification to this registrant was wholly without basis in fact we reverse this conviction.
Kessler was born in a conscientious objector camp, Mancos, Colorado, where his father was doing civilian work as a conscientious objector in World War II. Three of his four uncles had refused to serve in the armed services, in that war, on religious grounds and were classified as conscientious objectors. These views coincided with those entertained by appellant's grandfather.
On May 18, 1964, Kessler registered with Local Board 52, Selective Service System, Effingham County, Georgia. He signed Series VIII of the form, stating: "By reason of religious training and belief I am conscientiously opposed to participation in war in any form and hereby request that the local board furnish me a special form for conscientious objector (SSS Form No. 150)."
The form was furnished. In response to the requirement that he describe the nature of his belief forming the basis for his claim, he wrote:
In other portions of the form, in answer to the inquiry as to how, when, and from whom or from what source he received the training and acquired the belief which formed the basis for his belief, he responded:
"From the Church of Christ, our Evangelist, my parents, and above all the `Bible\'."
Question No. 4 asked, "Give the name and present address of the individual upon whom you rely most for religious guidance". He responded, "Grand dad A. C. Kessler and the scriptures".
The next question required him to describe the actions and behaviour in his life which demonstrated the consistency and depth of his religious convictions. He responded, .
The answers to further questions revealed that he was graduated from high school in 1963 and had been a member of the Oak Grove Church of Christ since August 29, 1960.
The last requirement was that he "describe carefully the creed or official statements of said religious sect or organization in relation to participation in war". The answer was, "The teaching by the Evangelist, Ministers, and Elders in the Church of Christ teach against war and against participating in either combat or non-combat service but each individual is free to choose as his conscious (sic) directs".
Kessler's Selective Service file contains a copy of the stipulation filed with the War Department by representatives of the Church of Christ on February 1, 1928, verifying the foregoing doctrine.
To anyone knowing anything of the beliefs of the members of the Church of Christ, including their literal adherence to the Scriptures and their universal practice of personally carrying the New Testament on their persons at all times, quoting chapter and verse with the most amazing facility, it would be difficult, if not impossible, to conceive of a more patent, prima facie exemplification of a genuine case of conscientious objection to participation in military activities.
In this state of the record the local board invoked the assistance of the field auditor of Selective Service. On April 30, 1965, the Clerk submitted the entire file, stating that on March 30, 1965, the registrant was
"Asked numerous questions by the board members". Only one question was reported. .
We observe as a matter of common sense and elementary logic that one conscientiously objecting to military service would be expected to object to wearing the uniform. So far as the records of the local board are concerned this is the only evidence we can find to justify its denial of conscientious objector classification.
The field auditor promptly responded, "I would recommend the local board place this registrant in class 1-0". The Board declined to follow this recommendation and the case was appealed. The local board sent the following statement in writing to the appeal board:
The Appeal Board affirmed the 1-A classification. There was no basis for this action. The fact that some members of the registrant's family and some members of his church had gone into the service was of no probative value whatever in determining the sincerity of the individual beliefs of this appellant. In fact, the Court below very correctly so held.
The next step was that Kessler was notified to appear before a special hearing officer of the Department of Justice at Bull and Bay Streets in Savannah on January 7, 1966, for a hearing on his claim to exemption as a conscientious objector. A resume of this hearing is in the file. It was upon certain fragmentary aspects of this resume that the District Court erroneously held that there was some basis in fact for denying classification as a conscientious objector.
It is our view, however, that the resume of the ex parte investigation completely corroborates Kessler's contentions. It comprises five typewritten spaces, single spaced. As our Chief Judge Brown would say, "severely capsulated", the essence of it is as follows:
A school official said that Kessler was a devout Christian and he would consider registrant's claim as sincere; registrant was a very good worker and an exceptionally good boy who neither drank nor smoked nor cursed. Another teacher stated her belief in the sincerity of his claim "inasmuch as other members of his family and congregation have so claimed". Four neighbors vouched for the sincerity of Kessler's claim. An elder of the Church of Christ reported that he knew the family to be obedient to the father and grandfather and that he believed in the sincerity of Kessler's claim. Three other church members reported to like effect.
No wonder, then, that Colonel Harry O. Smith, Director of the Selective Service System for the State of Georgia, on September 2, 1966, wrote the local board for Effingham County that "Upon review of Resume of Inquiry from the Justice Department I am of the opinion that he is a conscientious objector as was his father before him." The State Director commendably suited his actions to his words and appealed the case to the Presidential Appeal Board. Incredibly enough, with no reasons assigned, that Board affirmed the 1-A classification.
In the meantime, as the file reveals, Kessler filed at least two written statements with the Selective Service System re-affirming his religious convictions, extensively quoting scripture in support of his views, but stating that he was willing to perform civilian duty in lieu of induction.
At last, Kessler was notified to report for induction and he did report. He declined, however, to take the step forward. He was asked to give a written statement of his reasons, which he did, as follows:
Winburn Carson Kessler".
Indictment, prosecution, conviction, and sentence followed.
Prior to the trial on the merits counsel filed a motion for "appropriate relief or in...
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