Kreibich v. United States
| Decision Date | 20 October 1919 |
| Docket Number | 5384. |
| Citation | 261 F. 168 |
| Parties | KREIBICH v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Conrad Paeben and Chester H. Krum, both of St. Louis, Mo., for plaintiff in error.
Vance J. Higgs, Sp. Asst. Atty. Gen., of St. Louis, Mo., for the United States.
Before SANBORN and CARLAND, Circuit Judges, and YOUMANS, District judge.
Plaintiff in error, hereinafter called defendant, was indicted in two counts under the act of Congress of May 18, 1917 (40 Stat 76, c. 15), called the Selective Draft Act. He entered a plea of not guilty. Afterwards he withdrew that plea, and filed a demurrer to the indictment. The demurrer was overruled. Later he entered a plea of guilty to the first count and a nolle prosequi was entered to the second count. Defendant then filed a motion in arrest of judgment, which was overruled. Sentence was pronounced by the court on the plea of guilty and defendant brought error.
The errors urged here are the overruling of the demurrer and the motion in arrest of judgment. The motion in arrest raises the question of the sufficiency of the indictment to sustain a judgment. The demurrer raises the question of the sufficiency of the indictment to state an offense under the Selective Draft Act. They are argued as presenting the same question.
The indictment alleges in substance: (1) That defendant was a male person of 28 years of age, a resident of St. Louis, Mo a registrant and subject to the jurisdiction of the local board for division 13 of said city. (2) That he was before that board pursuant to said act and the acts amendatory thereof and supplementary thereto, and the regulations promulgated by the President, for the purpose of being classified for service under said acts and regulations. (3) That 'for the purpose of obtaining a more deferred classification than that to which he was rightfully entitled' he willfully, feloniously, and corruptly made the statements set out in the indictment, which were to the effect that his father was dependent upon him for support.
The indictment is based on that portion of section 6 of the act referred to (Comp. St. 1918, Sec. 2044f), reading as follows:
'Any person who shall make or be a party to the making of any false statement or certificate as to the fitness or liability of himself or any other person for service under the provisions of this act, or regulations made by the President thereunder * * * shall * * * be guilty of a misdemeanor.'
The argument by counsel for defendant is based upon the meaning of the word 'liability,' as used in the act, and the contention is that whatever false statements were made by defendant related, not to his liability for service, but to his status as defined in the regulations, and that false statements with regard to status constitute no crime under the clause of the Selective Draft Act above quoted. In support of that contention reliance is placed on the following portion of section 2...
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United States v. Rubinstein
...were made merely for purposes of obtaining "deferment" and thus not within the statute at all. They distinguish Kreibich v. United States, 8 Cir., 261 F. 168, holding that statements made to obtain a deferred classification were statements asserting non-liability for service, on the ground ......