Rowland v. United States, 13800.

• Decision Date: 16 October 1953
• Docket Number: No. 13800.,13800.
• Citation: Rowland v. United States, 207 F.2d 621 (9th Cir. 1953)
• Parties: ROWLAND v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

207 F.2d 621 (1953)

ROWLAND v.UNITED STATES.

No. 13800.

United States Court of Appeals Ninth Circuit.

October 16, 1953.

J. B. Tietz, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., Chief of Criminal Division, Manuel L. Real, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before MATHEWS, HEALY and BONE, Circuit Judges.

MATHEWS, Circuit Judge.

On October 15, 1952, appellant, Robert Donald Rowland, was indicted for violating § 12(a) of the Universal Military Training and Service Act,¹ 50 U.S.C.A. Appendix, § 462(a).²The indictment alleged:

"Appellant, a male person within the class made subject to selective service under the Selective Service Act of 1948,³ registered as required by said act and the regulations promulgated thereunder and thereafter became a registrant of Local BoardNo. 113, said board being then and there duly created and acting, under the Selective Service System established by said act, in Los Angeles County, in the Central Division of the Southern District of California; pursuant to said act and the regulations promulgated thereunder, appellant was classified in Class I-A-O and was notified of said classification and a notice and order by said board was duly given to him to report for induction into the armed forces of the United States of America on July 28, 1952, in Los Angeles County, California; and at said time and place appellant 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 refused to be inducted into the armed forces of the United States as so notified and ordered to do."

Appellant was arraigned, pleaded not guilty and filed a motion to dismiss the indictment.That motion was denied.Thereafter appellant waived jury trial and was tried without a jury.At the close of the evidence offered by appellee, the United States, appellant moved for a judgment of acquittal.That motion was denied.Thereafter appellant offered evidence and, at the close of all the evidence, again moved for a judgment of acquittal.That motion was denied.Thereafter appellant was found guilty, and a judgment was entered sentencing him to be imprisoned for four years.This appeal is from that judgment.

Appellant contends that the motion to dismiss the indictment should have been granted because the indictment was fatally defective in that the Act on which the indictment was based was referred to in the indictment as the "Selective Service Act of 1948," instead of the "Universal Military Training and Service Act."There is no merit in this contention.The Act on which the indictment was based has two names — "Selective Service Act of 1948"and"Universal Military Training and Service Act."⁴The name used in the indictment was a proper and sufficient designation of the Act.

Appellant contends that the motion for a judgment of acquittal at the close of the evidence offered by appellee should have been granted.We are not required to consider this contention, for appellant waived that motion by offering evidence after its denial.⁵

Appellant contends that the motion for a judgment of acquittal at the close of all the evidence should have been granted.That motion raised the question of the sufficiency of the evidence to sustain appellant's conviction.The evidence showed the following facts:

On October 26, 1949, and at all times thereafter, appellant was a male citizen of the United States residing in Los Angeles County, California.October 26, 1949, was his eighteenth birthday.Accordingly, on November 4, 1949, he registered as required by § 3 of the Act, 50 U.S.C.A.Appendix, § 453, as it then existed,⁶ and regulations prescribed thereunder.⁷He thus became and was at all times thereafter a registrant under the jurisdiction of Local BoardNo. 113, a local board created and established in Los Angeles County under § 10(b)(3) of the Act, 50 U.S.C.A.Appendix, § 460(b)(3).⁸On October 26, 1950, the local board mailed him a classification questionnaire (SSS FormNo. 100).⁹He received and completed the questionnaire and returned it to the local board on November 1, 1950.In it, he made the following statement:

"By reason of religious training and belief, I am conscientiously opposed to participation in war in any form and for this reason hereby request that the local board furnish me a Special Form for Conscientious Objector(SSS FormNo. 150)¹⁰ which I am to complete and return to the local board for its consideration."

Accordingly, on November 1, 1950, the local board mailed him a special form (SSS FormNo. 150).He received and completed the special form and returned it to the local board on November 6, 1950.In it, he made the following claim:

"I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in noncombatant training or service in the armed forces.I, therefore, claim exemption from combatant training and service and, if my claim is sustained, I understand that I will, because of my conscientious objection to noncombatant service in the armed forces, be deferred as provided in § 6(j) of the Act, 50 U.S. C.A.Appendix, § 456(j)."¹¹

Thus appellant sought to be classified in Class IV-E, which is to say, he sought to be classified as a conscientious objector opposed to both combatant and noncombatant training and service.¹²However, instead of classifying him in Class IV-E, the local board, on November 15, 1950, classified him in Class I-A-O, which is to say, it classified him as a conscientious objector available for noncombatant service.¹³On November 21, 1950, it mailed him a notice (SSS FormNo. 110)¹⁴ stating that he had been classified in Class I-A-O.The notice further stated:

"Appeal from classification by local board must be made within 10 days after the mailing of this notice by filing a written notice of appeal with the local board.¹⁵

"Within the same 10-day period you may file a written request for personal appearance before the local board.¹⁶If this is done, the time in which you may appeal is extended to 10 days from the date of mailing of a new Notice of Classification after such personal appearance."¹⁷

Appellant did not appeal from his classification by the local board or request a personal appearance before the local board within the 10-day period specified in the notice or at all, nor did he at any time request the local board to reopen his classification.¹⁸

On March 8, 1951, the local board mailed him an order (SSS FormNo. 223) to report for physical examination.¹⁹He complied with that order, was examined on March 16, 1951, and was found acceptable for induction.Thereafter, on July 16, 1952, the local board mailed him an order (SSS FormNo. 252) to report for induction²⁰ on July 28, 1952.He received that order on July 18, 1952, but did not comply with it.Instead, on July 28, 1952, he knowingly failed and refused to be inducted.

Thus the evidence showed that appellant, on July 28, 1952, knowingly failed and refused to perform a duty required of him under §§ 1-21 of the Act, 50 U. S.C.A.Appendix, §§ 451-454 and 455-471, and regulations made pursuant thereto.²¹We therefore hold that the evidence was sufficient to sustain his conviction.

In the District Court, appellant urged as a defense that his classification in Class I-A-O was invalid.Thus appellant sought a judicial review of his classification.Having failed to appeal from his classification, he was not entitled to a judicial review thereof.²²

At his trial in the District Court, appellant testified that he had a conversation with a clerk of the local board shortly after receiving notice of his classification.Appellant's counsel says that, in and by that conversation, appellant attempted to appeal from his classification and was frustrated by the clerk.As to what that conversation was, appellant testified as follows:

"Q.And what was the conversation?A.Well, I asked the clerk concerning the classification.I said that was not the classification that I filed for, that I deserved.She the clerk told me that inasmuch as the draft board²³ had classified me that, that they would not change their decision. * * *

"Q.Did you speak to her about an appeal?A.Yes.

"Q.What was the conversation on that?A.Well, as I already said before, she said as I had already been classified I-A-O, that the board wouldn't change their decision.

"Q.Did you ask her if there was anything you could do to get them to change the decision?A.Yes.

"Q.And what did she say?A.She said there wasn't."

Obviously, appellant did not, in or by that conversation, attempt to appeal from his classification, nor did the clerk, in or by that conversation, frustrate appellant; nor does the record show that appellant ever made any such attempt or was ever frustrated by the clerk or anyone else.

Though not required to review appellant's classification, the District Court did review it to the extent of determining whether it had a basis in fact.²⁴The District Court concluded that it did have a basis in fact.Appellant contends that it did not.Appellant having failed to appeal from his classification, we are not required to consider this contention.However, we have considered it and reject it for the following reasons:

As indicated above, appellant's claim was that, by reason of religious training and belief, he was conscientiously opposed (1) to participation in war in any form and (2) to participation in noncombatant training or service.On page 1 of his special form (SSS FormNo. 150), he was asked to describe the nature of the belief which was the basis of his claim.He answered as follows: "I believe that it is wrong to kill (Romans 13:9), that it is wrong to fight with carnal weapons (2 Corinthians 10:3-5; Ephesians 6:12; Matthew 26:52)...