Chih Chung Tung v. United States, 3904.
| Decision Date | 04 April 1944 |
| Docket Number | No. 3904.,3904. |
| Parties | CHIH CHUNG TUNG v. UNITED STATES. |
| Court | U.S. Court of Appeals — First Circuit |
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
Chih Chung Tung, pro se.
Thomas P. O'Connor, Asst. U. S. Atty., and Edmund J. Brandon, U. S. Atty., both of Boston, Mass., for appellee.
Alfred A. Albert, of Boston, Mass., for Civil Liberties Union of Massachusetts, amicus curiæ.
This is an appeal from a judgment sentencing the defendant to a term of imprisonment after he had been found guilty by the court below (the defendant waived his right to trial by jury and the United States Attorney assented) of knowingly failing to perform a duty imposed upon him by the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C.A. Appendix, § 301 et seq., to wit: refusing to comply with an order to report for induction.
The following facts appear from papers taken from the files of the defendant's local board and introduced into evidence at the trial below.
The defendant was born on June 6, 1909, in Fukien, China. He was admitted into this country at Seattle, Washington, on a Students Permit on October 8, 1936. He has remained in the United States ever since. On October 16, 1940, he lived in Boston and on that date he registered there in accordance with the Selective Training and Service Act of 1940. His registration card was forwarded to the appropriate local board in Boston. In the Selective Service Questionnaire which he later duly filed he stated the facts of his birth as above; that he was an Oriental, not a citizen of the United States, but a citizen or subject of China; that he had studied Religious Education for three years at Boston University School of Theology; that he was by occupation a student preparing for teaching; and that he did not customarily serve as a minister and had never been formally ordained. He did not state whether or not he was a minister of religion, but left that question in Series VIII of his questionnaire blank. On the basis of these statements his local board on January 7, 1941, put him in Class IV C. See Reg. 622.43.
On June 22, 1942, the defendant was sent an Alien's Personal History and Statement (Reg. 623.71) and on the same day he filled it out and returned it to his local board. In this statement he gave the facts of his birth, citizenship, entry into this country and education here, and then stated that he had received the degree of S.T. B.; that his present job was "Secretary (Informal)" employed by the Y.M.C.A.; and that his usual occupation was "Teaching and Social Work." This Personal History and Statement was forwarded through the proper channels by the local board to the Commanding General of the Service Command (Regs. 623.71, 623.72), and on August 28, it was duly returned to the local board (Regs. 623.73, 623.74) with endorsement to the effect that the defendant "is, if otherwise qualified, acceptable for training and service in the Army of the United States." After receipt of this endorsement the local board, on September 21, 1942, classified the defendant in 1 A, and four days later (September 25) sent him an order to report for induction. On September 29, 1942, within the ten day period after classification allowed for appeal (Reg. 627.2 (c), the defendant wrote his local board a letter in which, after explaining his "American name," he said:
"I appeal again not to be drafted to join the Army or Navy for the following reasons:
1. I am a Theology Graduate devoted to the work of God.
2. I am a Registrant Chinese Student who was born in China and come to U.S.A. for studies. I stay in U.S.A. temporarily for a period of time, and will go back to China when I have completed my studies.
3. I am better prepared for other work, I can work as a pastor in the Church or a professor in the College and what can I do in the Army?
According to the Regulations or Order from Washington, either a Theologian or an over-sea-Chinese student will not be drafted. Your letter of September 25 calling me to join the Army might be * * * must be mistaken. May I have your reply at soonest or earliest possible?
Yours very truly Admin. C. C. Tung (Rev.) (Ord. No. 435)."
The local board did not treat this letter as an appeal to the board of appeal or make any reply to it. The defendant did not comply with the order to report for induction, but no steps were taken by the local board in consequence. Reg. 642.41. From this we assume that the local board recognized the invalidity of its order under Reg. 627.41, it having been prematurely issued.
Next, on December 3, 1942, the local board received a memorandum from a special agent of the Federal Bureau of Investigation (apparently it had made request therefor under Reg. 621.7) which indicated, among other matters, that an extension of the defendant's Student Permit had been granted by the proper authorities on October 7, 1940; that the records did not indicate the next extension; that the defendant had not attended any school since June, 1941, and in consequence that his status as a student had terminated; that, however, on September 10, 1942, his status had been changed to temporary visitor, and he had been granted permission to stay in this country until February 1, 1943; and that under then existing conditions his "deportation is not practical and Tung will undoubtedly be granted further extension within the discretion of the Immigration Authorities."
Thereupon, on December 10, 1942, the defendant filed an Alien's Application of Determination of Residence with his local board (Reg. 611.21) in the margin of which he wrote "I am asked to fill this form; temporary residence is good enough for me." On this application the local board voted: "Registrant permanent residence of U.S. Ayes 3, Noes 0." and on December 28, 1942, mailed the defendant another order to report for induction. It is for failure to obey this order that the defendant was indicted, tried and convicted.
We are of the opinion that the judgment below must be...
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