Hopper v. United States, 10110.

• Decision Date: 18 December 1942
• Docket Number: No. 10110.,10110.
• Parties: HOPPER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

142 F.2d 167 (1942)

HOPPER v. UNITED STATES.

No. 10110.

Circuit Court of Appeals, Ninth Circuit.

December 18, 1942.

Charlie W. Clark and E. S. Clark, both of Phoenix, Ariz., for appellant.

Frank E. Flynn, U. S. Atty., and E. R. Thurman, Asst. U. S. Atty., both of Phoenix, Ariz., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

Appellant appeals from a judgment sentencing him to imprisonment for two years for violation of § 11 of the Selective Training and Service Act of 1940, 54 Stat. 894, 50 U.S.C.A.Appendix, § 311, hereafter called the Act.

The pertinent portions of the indictment charge that appellant "having theretofore registered under the Selective Training and Service Act of 1940, on or about the 22nd day of June, A. D. 1941, and within the District of Arizona, did knowingly, wilfully, unlawfully and feloniously fail and neglect to perform the duty required of him under and in the execution of said Act, and the rules and regulations made pursuant thereto, that is to say, that the said defendant, Robert Earl Hopper, having been theretofore classified by his local draft board at Prescott, Arizona, as a conscientious objector, and found fit for general service, did then and there, knowingly, wilfully, unlawfully and feloniously fail and neglect to report as a conscientious objector for civilian work of national importance when notified so to do by his local draft board; * * *."

Appellant moved to quash the indictment on the ground that it did not "state facts sufficient to constitute a crime or offense." The motion was denied. At the conclusion of the evidence, appellant moved for a directed verdict on the ground that the "indictment is fatally defective and does not charge a public offense." This motion was also denied.

To constitute a crime under § 11 of the Act, the accused man must "knowingly fail or neglect to perform some * * * duty required of him * * * under this Act." 50 U.S.C.A.Appendix, § 311. In order to impose a duty on a registrant under the Act, the local Selective Service Board, hereafter called Board, must classify him in one of three general classes: (a) as a combatant for "induction" into the land or naval forces of the United States (Act § 4(a), § 3(a), 50 U.S.C.A.Appendix, § 304(a), § 303(a);¹ (b) as one whose claim that he is a conscientious objector has been "sustained" by the Board for "induction" into the land or naval forces for noncombatant service (Act, § 5(g), 50 U.S.C.A.Appendix, § 305 (g),² and (c) as to sub-class of conscientious objectors whom the Board has "found to be conscientiously opposed to participation in such land or naval noncombatant service," to be "assigned to work of national importance under civilian direction," (Act, § 5(g), footnote 2, supra).

As to conscientious objectors, it is apparent that they may be required to serve in noncombatant work either by induction into the land or naval forces or by assignment to work under civilian direction. Obviously, if a conscientious objector is "found" by the Board to be in class (b) above described he cannot be assigned to serve under civilian direction, and violates no duty required of him under the Act if he fail to report for such service. Likewise, if in class (c) above described he cannot be required by the Board to be inducted to serve in the land or naval forces and if so ordered would violate no duty imposed by the Act if he failed to present himself for such induction.

The indictment charges only that appellant registered and was classified by the Board as a conscientious objector, found fit for general service. General physical fitness for service was determined prior to the classification as conscientious objector. If the registrant is found by the Board to be physically fit for general military service, the Board then proceeds to find whether he is a conscientious objector (1) to "combatant service" or (2) to both combatant and non-combatant military service.^* The indictment does not charge that he was "found" by the Board to be, or even that he is, conscientiously opposed to noncombatant service in the land or naval forces. Hence the Board had no power to "assign" him to work of national importance under civilian direction and order him to report to such authorities. It is no violation of § 11 of the Act to fail to obey an order which the Board has no power to make.

The indictment also fails to charge that the appellant belongs to the limited class of human beings which the Act makes subject to selective service, namely, the class of male humans who are citizens or resident aliens who have declared their intention to become citizens, between the ages of twenty-one and thirty-six. With however great the expansion of liberal construction of criminal proceedings, it cannot be said that a defendant is estopped from asserting the absence in the indictment of a charge that he belongs to a class subject to the Selective Training and Service Act merely because it is charged that he has registered under the Act. For these reasons it was error not to quash the indictment.

Nor is it proper criminal pleading to describe the Board created under the Act by no more than the words "his local draft board." While the word "draft" may be implied from the contrast in § 10 of the Act, 50 U.S.C.A.Appendix, § 310, between the compelled "registrants and of persons who volunteer for induction under this Act," a particular local board must be created in a particular "county or political subdivision corresponding thereto of each State, Territory, and the District of Columbia."³

Such criminal prosecutions as these are based upon the violations of the orders of a local board to be created under the Act....