Graves v. United States, 15423.

• Decision Date: 23 January 1958
• Docket Number: No. 15423.,15423.
• Citation: 252 F.2d 878
• Parties: David Seymour GRAVES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

252 F.2d 878 (1958)

David Seymour GRAVES, Appellant, v. UNITED STATES of America, Appellee.

No. 15423.

United States Court of Appeals Ninth Circuit.

January 23, 1958.

J. B. Tietz, Fred Okrand, Wirin, Rissman & Okrand, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Lloyd F. Dunn, Bruce A. Bevan, Jr., Louis Lee Abbott, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before HEALY, POPE and CHAMBERS, Circuit Judges.

POPE, Circuit Judge.

Graves appeals from a judgment of conviction of having knowingly failed and neglected to report for induction into the armed forces of the United States in violation of the Universal Military Training and Service Act, 50 U.S.C.A. Appendix, § 462.¹

The indictment charged that the defendant was subject to the provisions of the Act and to selective service thereunder; that he was classified IA and ordered to report for induction on October 13, 1955, in San Bernardino County, California, "and at said time and place the defendant did knowingly fail and neglect to perform a duty required of him under said act and the regulations promulgated thereunder in that he then and there knowingly failed and neglected to report for induction into the armed forces of the United States as so notified and ordered to do." Following a verdict of guilty the defendant was sentenced to serve a term of imprisonment of a year and a day.

Appellant has specified a number of errors including the giving and refusing of certain instructions and the refusal of the court to hear his claim that his IA classification was without basis in fact. Because of the conclusions which we reach in this case we find it unnecessary to consider any question present other than the challenge to the sufficiency of the evidence to sustain a conviction. Denial of appellant's motion for judgment of acquittal on this ground is specified as error.

The evidence shows that the appellant, after registering for the draft, was first classified IIC on May 23, 1951. This was an agricultural deferment because appellant's occupation was that of a beekeeper, looking after several thousand hives of bees which were located on numerous farms and over a considerable area. On March 10, 1954, he received a IA classification from the local board. After rather extended efforts to reverse this classification and to secure deferment on various grounds, his final appeal was rejected on September 2, 1954, and on November 23, 1954, he was found acceptable for military service on a preinduction physical examination. On August 23, 1955, he was ordered to report for induction on September 8, 1955.

Upon receipt of this notice to report appellant and his mother went to the Chairman of the local board and requested a postponement of his induction on the ground that the date named was in the midst of the harvest of the honey and during a critical time in the beekeeping business. Both of them testified that they were told by the Chairman that he would recommend a 30 day extension. Notice of such an extension, to the October call, was sent to appellant. They returned to the Chairman with the plea that appellant needed 60 days delay to enable him to complete his essential work. The Chairman finally said: "Well I will give you 60 days." They testified that this was satisfactory to appellant because it would postpone the day for reporting for induction to approximately November 8 when the harvest would be over. There is no contradiction of this testimony in the record.²

After this last interview with the Chairman, appellant left the county of his residence and went North to Kern County, some 160 miles distant, where the bulk of his hives were located.³ He then traveled about from field to field attending to his bees, and the evidence is clear that during this time it was not possible to reach him by mail or otherwise. He worked long hours, lived on snacks he bought at stores, and slept in his truck. He continued with these activities until approximately October 27, 1955. While he was thus engaged in Kern County, the board mailed to his resident address a notice dated September 23, 1955, referring to the postponement of the previous induction order, and directing him to report for induction on October 6. As appellant was still absent in Kern County, his mother opened the mail,⁴ and on October 7 she wrote the board the letter referred to in footnote 2, above, saying that her son "has been north around Bakersfield for the past 5 days and I cannot contact him as he is working in the fields with his bees and sleeping in a bedroll on his truck at nite." Following the board's receipt of that letter, it sent to appellant at his residence address the letter of October 10, 1955, previously referred to, stating: "Because you misunderstood, this Local Board is issuing a final directive for you to report at 7:45 A.M. Thursday, October 13, 1955 at the Metropolitan Coach Lines, 549 Third Street, San Bernardino, for forwarding to the induction station in Los Angeles." It is for failure thus to report as directed in that letter that appellant was indicted.

But this letter did not reach the appellant. He was still away. On the following day, October 11, appellant's mother, who had opened the letter, again wrote the board stating that her son was in the fields in Kern County and that she expected him to be through with his work by October 27; that it was impossible for her to contact him. On October 27, when appellant did return home he learned for the first time of the notices to report on October 6 and again on October 13. He and his mother went to the board offices the following morning to inquire, as they testified, what he should now do, and they were informed that the case was out of the board's hands and that the appellant had been reported as a delinquent registrant.

The facts above related appear from the testimony of appellant and his mother. But they were not contradicted,⁵ and we do not understand that the Government questions the fact that appellant had no knowledge either of the notice to report on October 6, or of that to report October 13, until after his return on October 27.⁶

We think that the Government's proof in this case falls short of showing that appellant knowingly failed and neglected to report for induction into the armed forces, as notified and ordered to do, that is to say, on October 13, 1955. The sanctions of the Act are directed only against one "who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title * *."

"The statute requires something more than mere failure, for the accused must `knowingly fail or neglect to perform' a statutory duty." United States v. Hoffman, 2 Cir., 137 F.2d 416, 419. The court held that this language meant that the "usual criminal intent" must be proven.

In United States v. Chicago Express, 7 Cir., 235 F.2d 785, 786, the court was dealing with similar language stating: "Whoever knowingly violates any such regulation shall be fined not more than $1,000 or imprisoned not more than one year or both." The court said (at page 786): "By using the word `knowingly' in 18 U.S.C.A. § 835, we think Congress, while describing a state of mind essential for responsibility, removed violations of the relevant regulations from the classification familiarly known as offenses malum prohibitum, public welfare, and civil offenses." In thus indicating that such language carried a requirement of culpable intent as a necessary element of the offense, the court quoted from the language of the Court in Boyce Motor Lines v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 332, 96 L.Ed. 367. In the latter case the Court referred to a similar statute as requiring proof that the accused "willfully neglected to exercise its duty."

United States v. Hoffman, supra, dealt with a prosecution under the Selective Training and Service Act of 1940, the language of which is substantially identical with that of § 462 under which the present indictment was drawn. We think that the court there was correct in saying that the words "knowingly fail or neglect to perform", etc., required proof of "the usual criminal intent." The proof is absent here, for there is no evidence that when the appellant failed to report on October 13, 1955, he knew that he had been ordered to do so. We think that our action here should be governed by what was said in Heikkinen v. United States, 78 S.Ct. 299, 302. In that case one of the counts of the indictment was laid under the provisions of an Act which provided punishment for any alien against whom an order of deportation was outstanding who "shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, * * *" Heikkinen, after he was ordered deported, failed to make any application for travel documents. The evidence showed that he did not do so because he had relied upon an Immigration inspector's letter to him stating that the officer was making arrangements to effect his deportation. Holding that the evidence was insufficient to convict, the Court said: "There can be no willful failure by a deportee, * * in the absence of evidence, or an inference permissible under the statute, of a `bad purpose' or `non-justifiable excuse,' or the like."

We recognize that the word "knowingly" in the statute here involved may not be as strong a word as "willfully" used in the Heikkinen case, but the use of either of these words requires proof of culpable intent as pointed out in Boyce Motor Lines v. United States, supra.

In an effort to...