Ex parte Kruk, 25036-S.
| Decision Date | 31 October 1945 |
| Docket Number | No. 25036-S.,25036-S. |
| Citation | 62 F. Supp. 901 |
| Parties | Ex parte KRUK. |
| Court | U.S. District Court — Northern District of California |
Benjamin Dreyfus and Louis Licht, both of San Francisco, Cal., for petitioner.
Frank J. Hennessy, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., both of San Francisco, Cal., for respondents United States Navy and Captain Elmer F. Helmkamp.
Petitioner seeks release by habeas corpus from the Receiving Ship at San Francisco, where he is detained awaiting trial by a naval court martial upon a charge of desertion.
Pursuant to the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., petitioner reported for induction into the armed forces of the United States, on August 6, 1943, at Maplewood, New Jersey. Under the process of induction petitioner was examined, accepted, informed that he had been inducted into the navy, and was ordered to report for duty one week later at the recruiting station at Newark, N. J. He failed to report and left for parts unknown. On July 16, 1945, he was apprehended at San Jose, California, by the Federal Bureau of Investigation and delivered to the detention barracks.
The question for decision is whether under the facts and the law, petitioner was on August 6, 1943, actually inducted into the navy.
At the hearing on the return to the writ, petitioner testified that on August 6, 1943, he reported voluntarily at the Armory in Newark for induction, pursuant to instructions of his local selective service board; that while there he told two officers that he wanted army service, and when asked why he preferred the army, said, "Well, a better chance of staying around the family"; that the word "navy" was stamped on his slip and he was taken in a station wagon with about five other men to the Newark Post Office; that there he signed several documents, none of which he read, nor was he informed of their contents, although one of them included induction articles in the navy to which was attached an oath of allegiance to the United States of America; that he was fingerprinted, and marched into another room with other selectees; that an officer read the oath and told the selectees to raise their right hands; that he did not raise his hand or take the oath; that his action was observed and an entry made on his service record. He further testified that on the same day he was interviewed by a naval officer concerning his refusal to take the oath; that he asked if he could not be transferred to the army, and was informed that nothing could be done at that time, that he was in the navy. When asked what was his reply to the order to report for duty one week later, petitioner was uncertain, but thought he said he would not be back. This statement is the only evidence of an express refusal to serve in the navy. He did not thereafter report for duty, but decamped on the day he was to report and, as we have seen, was arrested about two years later in California as a deserter and delivered to the naval authorities.
Army Regulations 615-500, paragraph 13, relating to induction after acceptance and induction ceremony, were offered in evidence without objection as the regulations governing induction into the navy at the time petitioner reported for induction. The pertinent sections are § e(1), describing the ceremony to be performed, and § e (4), which provides:
It was admitted at the hearing here that after the inception of the process of induction a selectee may not choose the branch of the service he would enter.
The leading case on the question for decision is Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917. In that case Billings, after repeated assertions during the induction process of his intention not to serve in the armed forces, was placed under guard to prevent him from leaving the reservation. He was permitted to telephone an attorney to represent him in a habeas corpus proceeding. The oath of allegiance was then read to him by an army officer, and he refused to take the oath. He was advised that his refusal made no difference; that he was in the army. He then refused to obey an order to submit to fingerprinting, and military charges were preferred against him for wilful disobedience of that order. His petition for writ of habeas corpus, alleging that he was not subject to military jurisdiction, was discharged by the District Court. 46 F.Supp. 663. The Circuit Court of Appeals, 135 F.2d 505, 507, affirmed the District Court,...
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