Berman v. United States, 10953.

• Decision Date: 27 August 1946
• Docket Number: No. 10953.,10953.
• Citation: 156 F.2d 377
• Parties: BERMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F.2d 377 (1946)

BERMAN v. UNITED STATES.

No. 10953.

Circuit Court of Appeals, Ninth Circuit.

June 29, 1946.

Rehearing Denied August 27, 1946.

A. L. Wirin, J. B. Tietz, and Abe F. Levy, all of Los Angeles, Cal., for appellant.

Charles H. Carr, U. S. Atty., James M. Carter, William L. Ritzi, and Ernest A. Tolin, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before GARRECHT, DENMAN, MATHEWS, STEPHENS, HEALY, BONE, and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

Herman Berman registered under the Selective Training and Service Act of 1940, 54 Stat. 894, 50 U.S.C.A.Appendix, § 301 et seq., and requested classification as a conscientious objector. He was classified by his local board and the appeal board as 1-A, available for military duty, and was ordered to an induction center, there to be inducted into the armed forces. He went to the center, but refused to be inducted. He was thereafter charged under the Act, 50 U.S.C.A.Appendix, § 311, with the offense of refusing to obey a board order, and after trial before a district judge (jury waived), he was convicted. This appeal is from the judgment and sentence upon the judgment.

A large part of the briefs is devoted to appellant's "Questions Involved I" as set out in his opening brief. The question stated is whether or not actual induction into the armed forces must have taken place as a step in the administrative process before a registrant has acquired a legal right to defend against the criminal charge that he had neglected or refused to obey a board order. That question is settled through the Supreme Court trilogy of cases: Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, which held that defenses could not be interposed until all administrative steps had been taken, Billings v. Truesdell, 321 U.S. 542, 64 S. Ct. 737, 88 L.Ed. 917, which held that the order to go to the place of induction and the induction are administrative steps; and the cases of Estep v. United States and Smith v. United States, 66 S.Ct. 423, 428, which hold in one opinion covering both cases that "Submission to induction would be satisfaction of the orders of the local boards, not a further step to obtain relief from them." We need not advert to this question again as it is clear that Berman had the right to submit his defense.

The decision in the case depends upon the interpretation of § 5(g) of the Selective Training and Service Act, 50 U.S.C.A. Appendix, § 305(g). We quote the section in part, emphasizing the specific phrase under question: "Nothing contained in this Act shall be construed to require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. * * *"

We quote "Questions Involved II" from appellant's opening brief: "Did the Local Board and the Board of Appeals and the Hearing Officer of the Department of Justice erroneously construe the meaning of the phrase `religious training and belief' refusing to classify the appellant 4-E and did the court below erroneously construe and did it erroneously accept an illegal construction of the meaning of the phrase `religious training and belief' in adjudging the appellant guilty?"

In the question appellant is claiming that both his classification and his conviction were based upon an error of law which amounts to a deprivation of due process of law. United States v. Kauten, 133 F.2d 703, is a similar case. United States ex rel. Phillips v. Downer, 135 F.2d 521, and United States ex rel. Reel v. Radt, 141 F.2d 845, are the same in principle, although they are habeas corpus proceedings. All three cited cases were appeals to the Second Circuit.

Specifically, appellant here contends that the local and appeal boards and the trial court erroneously narrowed the meaning of the section of the Act exempting conscientious objectors from combat training and service by holding that the phrase in the section, by reason of religious training and belief, limits the exemption to those conscientiously opposed to war as a belief related more or less definitely to deity. He argues, in effect, that a person's philosophy of life or his political view point, to which his conscience directs him to adhere devotedly, or his devotion to human welfare, without the concept of deity, may be religious in nature. Appellant refers to the three last above cited cases in support of his claim. For reasons which will hereinafter appear, we take divergent views from those expressed in those cases. The doctrine approved in the Downer and Badt cases, supra, are based upon the Kauten case, supra, and a cursory view of that case will demonstrate that the point was not necessary to the decision.

Appellant's statement of the case, so far as it goes, fairly and accurately states the evidence submitted on his behalf. We have deleted non-essentials and have added to it from the record.

The Appellant's Evidence.

The appellant was active in various social movements and had been active in various peace movements, both before and after Pearl Harbor; he had become interested in the peace movement while in junior high school, and had been executive secretary in Los Angeles of the Youth Committee Against War, a national organization composed of students, religious young people and young workers who were opposed to war as a method; he was opposed to all war, and had made speeches on the question of war; his attitude upon the question of war was based on his conscience and fundamental belief in, and devotion to, the brotherhood of all men; at all times he has been willing to and desired to go to a conscientious objector's camp and do work of national importance under civilian direction; he had even been willing to work with the American Field Service and undertake hazardous and life-risking ventures in connection therewith. He would not do non-combatant work within the jurisdiction of the army because his conscience would not permit him to do so; he could not submit to military jurisdiction which was constructed mainly for the destruction of human life when he was "devoted to the construction of human welfare and human betterment." He was a socialist and his belief in socialism was based on a desire to better the life of human beings in general.

The appeal board had before it, also, the report of the Hearing Officer of the Department of Justice, which stated in part:

"A perusal of the numerous pamphlets and circulars of a number of which Registrant says he was the author indicates that the vigorous and crusading opposition in which Registrant participated so fervently was directed at this war."

And further,

"I believe that Registrant is sincere in his effort to promote the Socialist Party, in his belief that war is futile, and in his diagnosis of the war as a war for the benefit of Capitalists. He has plenty of courage. He is, and long before Pearl Harbor was, willing to espouse his opposition to war whether practical or unpractical. If he stood alone, he would oppose this war and would fight our participation in it as zealously — even with equal futility — as King Canute, who tried to turn back the tide."

On Form 47, the conscientious objector form, appellant stated:

"Therefore, for the sake of humanity and out of deep loyalty to my fellow citizens I am opposed to war and refuse to participate in any activity connected with the war effort. However, I seek to continue working in the fields of constructive effort, alleviating distress among the under-privileged members of society, assist in breaking down the barriers of race, color, and creed, and work towards a society based on social ownership and cooperative and genuinely democratic control of the means of production and distribution for the benefit of all mankind.

He sent a statement to his local draft board (January 25, 1943) containing the following:

"War as a method is totally wrong! Its futility, its hopelessness, its inexpediency, its cost in human lives are appalling! The war method cannot be, never has been and never will be a method of social progress — for it works through destruction to destruction. If a small fraction of the effort spent on one day of war were utilized toward a peaceful and sane solution of the world's problems, how much farther on the road to a better world we would be — a world based on equality, peace, and plenty. I refuse to participate in this futility. I shall not assist in this wholesale massacre. Instead, I have chosen to join my ever-increasing number of comrades in refusing to co-operate in any way with this war effort. As alternative service, only under civilian direction and control, I will work in a socially constructive effort, such as the co-operative movement, the peace movement, in reconstruction work, etc."

In addition, appellant quotes in his Appendix "A" to his opening brief a number of letters or statements in writing which are found in appellant's service board file. These statements are from Helen Marston Beardsley, a well-known socialist; Norman Thomas, perhaps the leading American Socialist; Ernest Caldecott, Minister, First Unitarian Church, Los Angeles; Allan A. Hunter, Minister, Mt. Hollywood Congressional Church, Hollywood; and Harold Slocum, Associate Minister. Only the last two refer in any manner to religion. The others mention only appellant's sincere opposition to war as a social or political policy, or perhaps as a philosophical pattern for living. Minister Slocum states that he has found appellant "devoted to worthy objects of human service." Over a period of years he has been "conscientiously opposed to war" and "I am certain that these convictions are fundamentally based on religious beliefs, even though he is not attached to our particular church." Minister Hunter expresses himself in much the same way and adds: "Herman Berman is not a member of...