Conway v. United States
Decision Date | 03 January 1944 |
Docket Number | No. 10414.,10414. |
Citation | 142 F.2d 202 |
Parties | CONWAY v. UNITED STATES. |
Court | U.S. Court of Appeals — Ninth Circuit |
W. H. Chester, of Phœnix, Ariz., for appellant.
Frank E. Flynn, U. S. Atty., and E. R. Thurman, Asst. U. S. Atty., both of Phœnix, Ariz., for appellee.
Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.
Appellant was indicted for violating § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 311,1 and moved to quash the indictment. The motion was denied. Appellant pleaded not guilty and was tried. At the close of all the evidence, appellant moved for a directed verdict. The motion was denied. Appellant was convicted, was sentenced and has appealed.
Six alleged errors are assigned. Assignment 1 is that the court erred in denying the motion to quash the indictment. The denial of a motion to quash an indictment is not reviewable.2 Hence this assignment cannot be considered.
Assignments 2 and 3 are that the court erred in admitting evidence.3 Assignment 4 is that the court erred in rejecting evidence.4 These assignments do not, as required by Rule 2(b) of our rules governing criminal appeals, "quote the grounds urged at the trial for the objection and the exception taken and the full substance of the evidence admitted or rejected." Hence these assignments need not be considered.5 However, we have considered them and find no merit in them.
Assignment 5 is that the court erred in denying the motion for a directed verdict. To consider this assignment would require a bill of exceptions containing all the evidence.6 There is no such bill. The bill brought here does not purport to, and admittedly does not, contain all the evidence.
After the bill of exceptions was settled, the trial court ordered its clerk to transmit, and he did transmit to this court, a reporter's transcript of evidence taken and proceedings had at the trial of this case. The order was improper and ineffectual. The reporter's transcript is not a bill of exceptions and is no part of the record.7
Undoubtedly we could, in our discretion, permit the bill of exceptions to be amended by incorporating therein all evidence contained in the reporter's transcript.8 With a view to determining whether we should exercise that power, we have examined the reporter's transcript and find that the evidence therein was sufficient to warrant appellant's conviction and hence was sufficient to warrant denial of the motion for a directed verdict. Since, therefore, to exercise the power mentioned would avail appellant nothing, we decline to exercise it.9
Assignment 6 is that the court "erred in refusing to give to the jury the defendant's appellant's requested instructions10 and further erred in the court's instruction to the jury to the effect that the defendant cannot offer as a defense that the order of the Board11 is arbitrary and capricious."12 This assignment does not, as required by Rule 2(c) of our rules governing criminal appeals, "set out * * * totidem verbis" the instruction given or the instructions refused. Hence this assignment need not be considered.13 However, we have considered it and have reached the conclusions indicated below.
The evidence shows that, as charged in the indictment, appellant was "classified in class IV-E by his local board," which is to say, the evidence shows that he was classified as being concientiously opposed to participation in war in any form and to participation in noncombatant service in the land or naval forces of the United States and as being, therefore, assignable to work of national importance under civilian direction.14 There is no evidence that his classification was arbitrary, or that he was at any time classified otherwise than as stated above. In other words, there is no evidence to which appellant's requested instructions 1, 2 and 315 could have applied. Hence, even if these instructions were correct, the refusal to give them did not prejudice appellant.16
The record brought here contains a part of the court's charge,17 but does not contain or purport to contain the whole thereof. Thus, for all we know, the charge may have contained the substance, if not the words, of appellant's requested instruction 4.18 We therefore cannot say that the refusal to give this instruction was error.19
There is no evidence that the board whose order appellant disobeyed (Maricopa County Local Board No. 6) acted in an arbitrary or capricious manner or denied appellant a full and fair hearing. Hence, even if erroneous, the instruction20 the giving of which is here complained of did not prejudice appellant.21
One of the questions discussed in appellant's brief is whether the indictment charged an offense, his contention being that it did not. Although the question is not properly raised,22 we have considered it and hold that the indictment charged an offense.23
Judgment affirmed.
1 The indictment charged that on May 14, 1942, at Glendale, Arizona, appellant,
2 United States v. Hamilton, 109 U.S. 63, 3 S.Ct. 9, 27 L.Ed. 857; Goodfriend v. United States, 9 Cir., 294 F. 148, 150; Ramirez v. United States, 9 Cir., 23 F.2d 788, 789; Johnson v. United States, 9 Cir., 59 F.2d 42, 44; Sutton v. United States, 9 Cir., 79 F.2d 863, 864; Tudor v. United States, 9 Cir., 142 F.2d 206. See, also, Hopper v. United States, 9 Cir., 142 F.2d 167, 181; Lowrance v. United States, 9 Cir., 142 F.2d 192.
3 Assignment 2 relates to the admission of a letter (appellee's exhibit 7) from A. M. Tuthill, Selective Service Director for the State of Arizona, to J. S. Brazill, Chairman of Maricopa County Local Board No. 6. Assignment 3 relates to the admission of a letter (appellee's exhibit 11) from James Stokeley, Clerk of the Board of Appeals, Selective Service System, to the Chairman of Maricopa County Local Board No. 6.
4 Assignment 4 relates to the rejection of affidavits (appellant's exhibit A) of members of a sect called Jehovah's Witnesses.
5 Wheeler v. United States, 9 Cir., 77 F.2d 216, 218; Levine v. United States, 9 Cir., 79 F.2d 364, 367; Muyres v. United States, 9 Cir., 89 F.2d 783; Levey v. United States, 9 Cir., 92 F.2d 688, 692; Waggoner v. United States, 9 Cir., 113 F.2d 867, 868; Utley v. United States, 9 Cir., 115 F.2d 117, 119; Tudor v. United States, supra. See, also, Hopper v. United States, supra.
6 Rasmussen v. United States, 9 Cir., 8 F.2d 948, 949; Smith v. United States, 9 Cir., 9 F.2d 386, 387; Hall v. United States, 9 Cir., 48 F.2d 66, 67; Patrick v. United States, 9 Cir., 77 F.2d 442, 445; DuVall v. United States, 9 Cir., 82 F.2d 382, 383; Tudor v. United States, supra. See, also, Lowrance v. United States, supra.
7 Hursh v. Killits, 9 Cir., 58 F.2d 903; Lau Lee v. United States, 9 Cir., 67 F. 2d 156; Tudor v. United States, supra.
8 See Rules 4 and 9 of the Rules of Criminal Procedure after Plea of Guilty, Verdict or Finding of Guilt, 18 U.S.C. A. following section 688; Ray v. United States, 301 U.S. 158, 57 S.Ct. 700, 81 L. Ed. 976; Forte v. United States, 302 U.S. 220, 58 S.Ct. 180, 82 L.Ed. 209; Kay v. United States, 303 U.S. 1, 9, 58 S.Ct. 468, 82 L.Ed. 607; Long v. United States, 9 Cir., 90 F.2d 482; Reiner v. United States, 9 Cir., 92 F.2d 321; Noland v. United States, 9 Cir., 92 F.2d 820; Ross v. United States, 9 Cir., 102 F.2d 113; Walker v. United States, 9 Cir., 113 F. 2d 314, 316-319, 129 A.L.R. 725; Tudor v. United States, supra.
9 Cf. Hopper v. United States, supra; Tudor v. United States, supra; Flynn v. United States, 9 Cir., 139 F.2d 669.
10 The following instructions were requested and refused:
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