Pacman v. United States, 10362.

• Decision Date: 11 December 1944
• Docket Number: No. 10362.,10362.
• Citation: 144 F.2d 562
• Parties: PACMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F.2d 562 (1944)

PACMAN v. UNITED STATES.

No. 10362.

Circuit Court of Appeals, Ninth Circuit.

August 28, 1944.

Rehearing Denied September 30, 1944.

Writ of Certiorari Denied December 11, 1944.

David R. Rubin and Leland S. Bower, both of Los Angeles, Cal., for appellant.

Charles H. Carr, U. S. Atty., and James M. Carter and Mildred L. Kluckhohn, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.

Writ of Certiorari Denied December 11, 1944. See 65 S.Ct. 278.

HEALY, Circuit Judge.

Appellant was convicted of violating § 11 of the Selective Service and Training Act, 50 U.S.C.A.Appendix, § 311, by failing to obey an order to report for induction into the army.

On the appeal it is conceded that the decision in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, has foreclosed argument on the bulk of the assignments of error. The chief contentions now urged are that counsel for the government exceeded the bounds of propriety in his argument to the jury, and that the judge himself committed prejudicial error in his comments during the course of the trial. Error is predicated, also, on the rejection of exhibits said to bear on the question of intent. The nature of appellant's argument calls for a brief summary of the evidence.

Appellant was originally given a lengthy deferment and was then placed in Class I-A, whereupon, claiming to be conscientiously opposed to combatant service, he asked to be placed in Class I-A-O. He was accorded a hearing; and while the board expressed doubt of his sincerity it granted his request. He then asked to be put in Class IV-E. On the denial of the request he sought review with the result that the appeal board by unanimous vote sustained the local board. Appellant was so notified on August 31, 1942. A few days later he was ordered to report for induction in harmony with his I-A-O classification, the time for his appearance being set for September 14. The order was accompanied by a letter of transmittal signed by the chairman of the board, advising the registrant that the board was without authority to stay induction and warning that criminal penalties would be incurred by a failure to report. Appellant did not report, nor did he appear in response to the notice of suspected delinquency thereafter sent him.

The excuse he advanced on the trial was that he felt that his classification was "being reviewed." Prior to receipt of the induction order he had written or telegraphed the state and national directors suggesting reasons why he thought a Presidential review was appropriate. The state director had acknowledged receipt of the communication, adding that it would be given consideration. However, appellant at no time made inquiry of the local board as to whether there was a stay notwithstanding he had reason to know that any stay which might be granted would be communicated through that quarter. The record makes it plain that he was under no misapprehension as to his legal obligation to obey the order to report, regardless of what might prove to be the outcome of his subsequent maneuvers. Section 628.2 of the regulations affords a registrant a right of appeal to the President only where one or more members of the appeal board dissent from the registrant's classification. Appellant was aware that the appeal board had acted unanimously in his case. His letters and testimony show him to be a man of much more than ordinary intelligence, and it is evident that he...