Seele v. United States, 12476.

• Decision Date: 23 February 1943
• Docket Number: No. 12476.,12476.
• Citation: 133 F.2d 1015
• Parties: SEELE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

133 F.2d 1015 (1943)

SEELE v. UNITED STATES.

No. 12476.

Circuit Court of Appeals, Eighth Circuit.

February 23, 1943.

COPYRIGHT MATERIAL OMITTED

Bryan Purteet, of St. Louis, Mo. (Joseph C. Hopewell, of St. Louis, Mo., on the brief), for appellant.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (David M. Robinson, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, RIDDICK, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

The appellant, Eugene William Seele, Jr., appeals from a judgment of conviction after trial before a jury in the District Court of the United States for the Eastern District of Missouri. The indictment, returned at the March Term, 1942, of said court, in one count charged appellant, a person liable for military training and service in the Land and Naval Forces of the United States, and a registrant with Local Board No. 5, University City, St. Louis County, Missouri, with a violation of the provisions of Section 311 of Title 50 U.S.C.A.Appendix, in that he failed and refused to report for inductment into the Military Service of the United States when ordered so to do in accordance with the provisions of the Selective Training and Service Act of 1940, and the amendments thereto, 50 U.S.C.A.Appendix, § 301 et seq.

Upon registering with Local Board No. 5 of said St. Louis County, appellant filed his Selective Service Questionnaire June 23, 1941. In this questionnaire he made the following general statements:

He said he was clearing-house clerk in a large bank, to-wit, The Mississippi Valley Trust Company of St. Louis, Missouri. In this position he operated adding and proof machines and sorted checks to bank requirements; that he had worked three and one-half years in that job, and expected to continue indefinitely in it; that his salary was seventy-five dollars per month; and that the other business, or work in which he was then engaged, was photography, which he preferred. He listed himself, by reason of religious training and belief, as conscientiously opposed to participation in war in any form, and therefore claimed exemption from combatant training and service; he said he was a minister of religion and customarily served as such. That he had been a minister of Jehovah's Witnesses for two years, but had not been formally ordained, and was not a student preparing for the ministry in a theological or divinity school. He injured his neck in a polo game about two years before that and thought a resulting "subluxated vertebrae might have some effect on my classification".

There are in his questionnaire various statements as the bases for his religious attitude, among them, that "I want no part in war in any form", and "I believe in the use of force only in defense of myself, my family, and my personal property if endangered and threatened".

His physical examination, July 16, 1941, reported no injury to his back to which he referred. September 8, 1941, the Local Board placed him in Class 1-A-0, by a vote of 3 to 0. September 26, 1941, he signed and filed a written appeal to the Board of Appeal. The record minute of action by the Board of Appeal shows that that Board classified the registrant in class 1, Subdivision A, by a vote of Yes 5, No 0, dated February 19, 1942. October 30, 1941, the following entry by the Local Board appears in the record: "This Board is not in favor of changing classification due to being a C. O. Please note his name does not appear in the list of members of Jehovah's Witnesses. We feel he is using his C. O. as a subterfuge and think his induction will materially change his views about fighting to protect his country".

As shown above, the Board of Appeal reviewed the file before the Local Board and determined that the registrant should not be classified in Class 4.

Mr. Frank A. Thompson, a lawyer of St. Louis County, Missouri, was a Special Assistant Attorney General of the United States with the title of "Hearing Officer". To him was referred the claim of appellant as a conscientious objector. The hearing was held December 10, 1941. Seele appeared and stated that he did not wish to press his claim as a conscientious objector, but did want to stand on his claim as a Minister of Jehovah's Witnesses. Thereafter appellant executed the following instrument of withdrawal:

"To Whom It May Concern:

"The undersigned states with reference to his classification under the Selective Service Law that he does not claim exemption as a Conscientious Objector, and wishes to withdraw his claim for such exemption.

"(Signed) Eugene Seele, Jr. "January 19, 1942".

The Attorney General's office, therefore, on or about February 7, 1942, returned the case to the Board of Appeal "without recommendation of the Department of Justice".

During the pending of his matter he submitted various letters and documents to both Local and Appeal Boards, which, as appears from the record, were duly received and considered by those Boards. They appear in the record before us as Exhibits A, B, C, D, E, F, H, and I. Exhibit "A" is a document "To Whom it May Concern", issued June 16, 1941, by Watch Tower Bible and Tract Society, Incorporated, for charitable, religious and scientific purposes, under the hand of "Emerson L. Knost, Company Servant". This document proclaims that appellant then was "an ordained minister of the Gospel sent forth in conjunction with the above named organization to preach the gospel as commanded by the Lord Jesus at Mathew 24, 14, * * * by calling upon the people at their homes".

Exhibit "B", dated September 20, 1941, addressed to Local Board No. 5, announced that he did not accept his classification in 1-A-0; that he could not obtain the proper forms to make his appeal, and this letter was to serve as his appeal. He announces that he "will never waver from my consecration to Jehovah".

Exhibit "C" is his letter to the Board of Appeal, received December 27, 1941, in which he says it may help the Board, in considering his reclassification from 1-A-0 to 4-D, to be advised that "I have been a full time witness for Jehovah since the 14th of this month, December, 1941. I then gave up my secular work to become a minister to preach the gospel of God's Kingdom".

In Exhibit "D", received by the Local Board February 5, 1942, he states that he had theretofore notified the Board that he had discontinued secular work and was "putting in full time preaching the Gospel of God's Kingdom"; that his ministry papers were in process of being filed, and asked that his case be reopened for the purpose of reconsidering his classification at the time when his name should be added to the list of ordained ministers.

Exhibit "E" is defendant's letter of March 10, 1942, enclosing to Local Board No. 5, Exhibit "F" which is the formal certificate of ordination issued March 7, 1942, by the Watch Tower Bible & Tract Society, Inc., through its "Superintendent of Evangelists". The letter also states that Seele has submitted affidavits to be accompanied by an application of the Society to have his name added to the list of pioneers, certified to state headquarters.

Exhibit "H" is a letter from the Selective Service State Director to Local Board No. 5, dated June 30, 1941, stating for the information of the Board that there was a small group of Jehovah's Witnesses, known as "pioneers" who occupied a position similar to an ordained minister. Their names should be found upon the list at state head-quarters. The letter also states that "the question of whether or not they stand in the same relationship as regular or duly ordained ministers in other religions, must be determined by the Local Board, in each individual case".

Exhibit "I" is a letter from the Deputy Director of National Headquarters of the Selective Service System, dated June 12, 1941. After stating that it is impossible to make a general determination, this letter advises, in an effort to assist the Local Boards, that whether or not Jehovah's Witnesses "stand in the same relationship as regular or ordained ministers in other religions must be determined in each individual case by the Local Board, * * * whether or not (among other things) they perform functions which are normally performed by regular or duly ordained ministers of other religions".

These Exhibits were offered in evidence by appellant; the government objected to their admission as constituting no legal defense; the objections were sustained, and exceptions preserved. The case was submitted to the jury. A verdict of guilty was returned, and judgment followed.

In this appeal the following points are relied upon by appellant in brief and argument:

"1. The indictment is defective because it does not negative the exceptions and exemptions contained in the Selective Service Act.

"2. Section 11 (U.S.C.A. 50 appendix 311) is unconstitutional and void because it delegates authority to individuals and boards to make any kind of an order or direction and undertakes to punish persons who violate any order or direction given by such individuals and boards, without regard to the reasonableness of such order or direction and without regard to whether such order or direction has any basis in law.

"3. The government's evidence was insufficient and the court should have sustained appellant's demurrer to the evidence.

"4. The court erred in refusing to permit defendant to prove that Local Board No. 5, University City, Missouri, the Appeal Board and Draft Officials acted arbitrarily and capriciously without foundation of law and refused to give defendant a hearing in arriving at his classification, so-called.

"5. The court's charge to the jury was erroneous.

"6. The judgment and sentence of the court is void."

1. It is now the settled rule, as declared by the Supreme Court of the United States, "that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not...