Breitmayer v. United States

• Decision Date: 05 March 1918
• Docket Number: 3105.
• Citation: 249 F. 929
• Parties: BREITMAYER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

249 F. 929

BREITMAYER v. UNITED STATES.

No. 3105.

United States Court of Appeals, Sixth Circuit.

March 5, 1918

Joseph B. Beckenstein and Maurice Sugar, both of Detroit, Mich., for plaintiff in error.

John E Kinnane, U.S. Atty., and J. Edward Bland and Louis W McClear, Asst. U.S. Attys., all of Detroit, Mich.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

The plaintiff in error was indicted June 13, 1917, for willful failure and refusal to present himself for or submit to registration according to requirement of the President's proclamation, and of section 5 of the Selective Draft Act each bearing date May 18, 1917. Proc. 1917, p. 20; Public No. 12, 65th Congress, c. 15, 40 Stat.pp. 76, 80, U.S. Comp. Stat. Supp. 1917, pp. 61, 66. The indictment in substance charges that defendant, a male person within the prescribed age limits, was required under the proclamation of the President to appear and submit to registration on June 5, 1917, between stated hours, in the city of Detroit at the place of registration in the precinct, being a specified voting precinct, in which defendant 'lived and had his permanent home and actual place of legal residence and from which he was not temporarily absent,' his residence being designated by street and number, but that he willfully failed and refused so to appear and submit to registration, and that defendant was not at the time 'an officer or an enlisted man of the Regular Army or Navy or of the Marine Corps of the United States' nor 'an officer or enlisted man of the National Guard or Naval Militia in the service of the United States,' nor 'exempted or excused from registering under the provisions' of the act of Congress before named.

Upon arraignment defendant waived the reading of the indictment and stood mute, whereupon a plea of not guilty was entered under direction of the court. The cause was heard before the court and a jury, and at the close of the evidence presented by the government, motion made in defendant's behalf for a directed verdict was denied, subject to exception. No testimony was offered for defendant, and no exception was reserved to the charge of the court. Defendant was found guilty as charged, sentence was pronounced, and error is prosecuted.

The scheme of defense relied on was, in the first place, to show constitutional invalidity of the Selective Draft Act, and, in the next place, to require the government strictly to prove the charges of the indictment.

1. The first feature of the defense must, of course, fail, since the Supreme Court, on January 7, 1918, held the act to be constitutionally valid (Arver v. United States, 245 U.S. 366, 38 Sup.Ct. 159, 62 L.Ed. . . .), and this ruling was reaffirmed on the same day in Perkins v. Jones, 245 U.S. 390, 38 Sup.Ct. 166, 62 L.Ed. . . ., and again, on January 14, in Goldman v. United States, 245 U.S. 474, 38 Sup.Ct. 166, 62 L.Ed. . . ., Kramer v. United States, 245 U.S. 478, 38 Sup.Ct. 168, 62 L.Ed. . . ., and Ruthenberg v. United States, 245 U.S. 480, 38 Sup.Ct. 168, 62 L.Ed. . . . .

2. In the second branch of the defense it is insisted that the corpus delicti was not proved. Counsel's theory is that the corpus delicti included at least the elements of age and failure to register in the precinct where defendant permanently resided; that there was no substantive proof of either, and hence that admissions of defendant were not sufficient to sustain the conviction. We think there was sufficient proof, apart from the admissions, fully to show both of these elements. As to the question of age, a close relative, who lived near defendant's place of birth and had known him ever since he was a child, testified in effect that, while he was not sure of defendant's age, yet that 'he is about 27 or 28. ' This is in accord with a birth certificate which was received in evidence, showing the date of birth to have been April 24, 1889. Exception, however, was reserved to the admission of the certificate in evidence on the grounds, first, that it was not certified by the proper official; and, second, that it does not purport to be the certificate of defendant's birth.

These objections are not tenable. It appears in the record without dispute that the birth certificate was 'duly certified by the clerk of Jackson county,' Mich. Registration of births was provided for by statute approved March 27, 1867. Laws Mich. 1867, p. 266; Comp. Laws Mich. (Ed. 1897) p. 1451. Section 1 required the supervisors or assessors annually to ascertain the births occurring in their respective townships or cities and to make accurate returns of them to the clerk of the county in which the township or city was situated. Section 3 provided that the county clerk should record the births, prescribing the form of record, which included date of birth, name and sex of child, place of birth, and names, residence, and nativity of parents, etc., and requiring each clerk annually to make and transmit to the secretary of state a certified copy of the records in his office concerning births, etc., occurring during the year.

It is urged that the birth certificate should have been authenticated by the secretary of state, instead of the clerk of Jackson county. This claim is based upon a statute approved June 20, 1905. Public Acts Mich. 1905, p. 508. That statute, it is true, provides for the registration of births and the appointment of local registrars. Certificates of births, however, are made out by the attending physicians or midwives on blanks supplied by the secretary of state and distributed by the local registrars, who in turn transmit the originals to the secretary of state. This statute is in terms simply prospective. Thus the secretary of state is made the custodian of all original birth certificates required under the statute of 1905, just as the several county clerks were made custodians of those provided for under the statute of 1867. The statute of 1905, we observe, repealed so much of the act of 1867 as was 'inconsistent with' the later act. Still there is no perceivable inconsistency between the two acts so far as the custody of the two sets of original birth certificates is concerned, since no provision was made for transferring the originals of birth certificates in the custody of the county clerks to the custody of the secretary of state. Further, the secretary of state is empowered to furnish certified copies of original birth records which have been transmitted to his office in accordance with the act of 1905, and such certified copies are made prima facie evidence in all courts of the 'facts therein stated'; but this power is not extended to birth records held by the county clerks under the act of 1867, nor does any such power appear to have been created at any time respecting these latter birth records. How, then, are such county clerk records to be proved?

In situations similar in principle to this the rule was long since laid down in this country that a copy of a record, duly certified by a public officer whose duty it is to keep the original, should be received in evidence. United States v. Percheman, 32 U.S. (7 Pet.) 51, 85, 8 L.Ed. 604; Meehan v. Forsyth, 65 U.S. (24 How.) 175, 176, 16 L.Ed. 730; Commonwealth v. Meehan, 170 Mass. 362, 363, 364, 49 N.E. 648; Childs v. State, 55 Ala. 28, 30; 3 Wigmore on Ev. Sec. 1667, at page 2102; 2 Wharton, Crim. Ev. (10th Ed.) Sec. 527c. We therefore hold that the present certified copy of birth certificate is an admissible instrument of evidence wherever relevant to the issue. We have in mind, of course, the objection that this instrument does not purport to be a certificate of defendant's birth. It is true that the certificate states the name of the child to be Vern W., not Milton V., Breitmayer; but the witness who testified to defendant's age, as pointed out, stated, 'I know the defendant, Milton V. Breitmayer, have known him all my lifetime,' and, further, that defendant's correct name is Vern William Breitmayer. Moreover, another witness closely connected with defendant and on most intimate terms with...