Moorman v. United States

• Decision Date: 24 January 1968
• Docket Number: No. 25003.,25003.
• Citation: 389 F.2d 27
• Parties: Frank Roswell MOORMAN, III, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

389 F.2d 27 (1968)

Frank Roswell MOORMAN, III, Appellant, v. UNITED STATES of America, Appellee.

No. 25003.

United States Court of Appeals Fifth Circuit.

January 24, 1968.

O. H. Harris, Dallas, Tex., for appellant.

B. H. Timmins, Jr., Asst. U. S. Atty., Melvin M. Diggs, U. S. Atty., Dallas, Tex., for appellee.

Before MARIS,^* THORNBERRY and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant Frank Roswell Moorman III was convicted by a jury on five counts of violating the Universal Military Training and Service Act. He was sentenced to serve five years concurrently on each count. Counts I, II and III charged him with failing to report for an armed forces physical examination on June 28, 1965, August 2, 1965 and July 5, 1966, respectively. Counts IV and V charged him with having failed to report for induction into the armed forces on August 22, 1966 and December 12, 1966, respectively.

On June 22, 1965, appellant's local board sent him an order to report for an armed forces physical examination in Dallas, Texas, on June 28, 1965, at 7 a. m. He failed to report but contacted the local board office on July 1, 1965, stating that he had arrived at 8 a. m. on the morning of June 28 for the physical examination and was too late to be examined. He was told his examination would be rescheduled.

On July 13, 1965, his local board sent him an order to report for a physical examination on August 2, 1965, at 7 a. m. Again, he failed to report. On August 2, 1965, he reported to the local board office at 9 a. m. and informed the assistant clerk that he could not make it before 9 o'clock. The clerk then arranged for appellant to be examined at 11 a. m., to which appellant agreed. However, at 11:25 a. m., appellant called the board and said he was too busy to appear for the physical on that date but that he could come in on Wednesday at 7 a. m. He was informed that a special day could not be set for him. He then informed the assistant clerk "he was not in the Army yet and could do what he pleased and that was just the way it was to be." On August 6, 1965, he appeared at the board office and informed the "person in charge" that "It was a great sacrifice to get up and come down to the Examining Station for his physical examination."

On June 14, 1966, the board sent him an order to appear for his physical examination on July 5, 1966, at 7 a. m. Again, he failed to report, as a result of which the board on July 11, 1966 mailed him a notice declaring him to be a delinquent for failure to report for the physical and directing him to report to the board immediately, informing him that wilful failure to perform this duty is a violation of the Universal Military Training and Service Act. On July 12, 1966, appellant returned the delinquency notice with an accompanying letter stating that he had not received the notice to report for the physical examination on July 5, 1966 because he had been away from Dallas at the time. He requested his name be removed from the delinquency list, but was informed by return letter of the board that this could not be done until he had fulfilled the obligation for which he had been declared delinquent.

On July 26, 1966, the board sent him an order to report for induction into the armed forces on August 22, 1966, at 7 a. m. He failed to report. However, on August 2, 1966, appellant wrote the board and returned the order to report for induction stating that he was actively engaged in the radio business and that he must have ample time to conclude and close out his business. By letter dated August 4, 1966, the board informed him that it did not feel his letter warranted reopening of his classification or cancelling the order of induction and that he would be expected to report on August 22, 1966. On August 18, 1966, appellant again wrote the board requesting a delay of induction because of the death of his mother on August 15, 1966. On August 18, 1966, the board wrote appellant informing him that his request for postponement had been denied. Despite the denial he failed to report on August 22, 1966, as ordered. On August 30, 1966, the United States Attorney for the Northern District of Texas was informed of appellant's failure to report for induction. However, on October 28, 1966, appellant made a personal visit to the board office and stated he would submit for induction on or later than November 10, 1966, if the United States Attorney would decline prosecution in his case. The United States Attorney accordingly declined prosecution.

On November 21, 1966, the board mailed appellant an order (by registered mail) to report for induction on December 12, 1966, at 6:30 a. m. The notice was returned to the board office stamped "Return to Writer — Reason Unclaimed."

On December 5, 1966, appellant brought to the board a copy of an indictment dated November 8, 1966 by the Tarrant County, Texas, State Criminal Court against appellant for violation of the check law over $50. At that time appellant also stated there was a registered letter at the Post Office and he wanted to know its contents. He was informed that the letter ordered him to report for induction on December 12, 1966, and he stated he planned to go by that day and pick it up. Nevertheless, on December 7, 1966, the registered letter was returned to the board and entry in the board's minutes states "Registered letter returned — refused by registrant."

I.

Appellant contends that Counts I, II and III of the indictment are fatally defective for failure to charge an offense against the United States. Though these counts assert that appellant violated the Universal Military Training and Service Act, the citation of the statute is to a violation in each instance of Title 18, U.S.C. § 462. This was an obvious error in the indictment which should have charged violations of 50 App. U.S.C. § 462. It is noted that Counts IV and V charge violations of 50 App. U.S.C. § 462. Rule 7(c) of Federal Rules of Criminal Procedure provides in part:

"Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice."

Defendant was in no way prejudiced by the erroneous citation since it is abundantly clear from each of the counts of the indictment that he was charged with a violation of the Universal Military Training and Service Act. See United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941).

II.

Appellant further contends that the evidence is insufficient to justify a conviction under Count I of the indictment. In Count I appellant testified that he arrived at the Examining Station for his physical on June 28, 1965, at 8 a. m., which was one hour late. Accordingly, he states that there was no criminal intent to violate the law and the proof is inadequate to justify a finding of guilty by the jury on this count. However, the question of intent is a matter for the jury to consider with all of the facts of the case, and we hold that the jury was fully justified in finding appellant guilty on Count I when all of the facts and circumstances (including evidence of numerous subsequent violations) are considered together. The law assumes every man to intend the natural consequences of his acts. See Cramer v. United States, 325 U.S. 1, 32, 65 S.Ct. 918, 933, 89 L.Ed. 1441 (1945). Evidence of subsequent acts of defendant may also show criminal intent. See United States v. Shoehr, 3 Cir., 1952, 196 F.2d 276, 282, 33 A.L.R.2d 836. It is obvious that appellant was openly flaunting orders of his board and had no intention of complying with them.

III.

Appellant makes the same contention with reference to the finding of guilty on Count II, that is, that the...