Shurin v. United States

• Decision Date: 16 February 1948
• Docket Number: No. 5608.,5608.
• Citation: 164 F.2d 566
• Parties: SHURIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

164 F.2d 566 (1947)

SHURIN v. UNITED STATES.

No. 5608.

Circuit Court of Appeals, Fourth Circuit.

November 10, 1947.

Writ of Certiorari Denied February 16, 1948.

Walter R. Jones, Jr., of Rockingham, N. C. (Walter R. Jones, of Rockingham, N. C., on the brief), for appellant.

Robert S. McNeill, Asst. U. S. Atty., of Greensboro, N. C. (Bryce R. Holt, U. S. Atty., of Greensboro, N. C., on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

Writ of Certiorari Denied February 16, 1948. See 68 S.Ct. 608.

PARKER, Circuit Judge.

This is an appeal in a criminal case in which the defendant, one Morris Shurin, was convicted of violating sec. 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311, making it a criminal offense for anyone charged with the duty of carrying out any of the provisions of the act to make any false statement or certificate as to his liability or non-liability for service under the act or to evade registration or service thereunder. Defendant was charged in a three count indictment with violations of the act but was acquitted on the second and third counts. The first count, under which he was convicted, charged that on January 10, 1944, having been registered under the act with Local Board No. 2, Greensboro, North Carolina, he "evaded service in the land or naval forces of the United States in that in occupational classification affidavit filed with said board he made a false statement as to his liability for service stating therein he was President-Manager of an establishment manufacturing aeroplane parts, buying tools, running shop and inspecting aircraft, and he then knew the statement to be false as his company had no manufacturing facilities, and he did not supervise work done by subcontractors."

The principal question in the case is as to the sufficiency of the evidence to take the case to the jury, but we think it clearly sufficient. Defendant had registered under the selective service act in Greensboro, N. C., where he was then residing, and had been classified as 1-A and ordered to report for induction on January 19, 1944. He secured a change in classification to 2-A, which meant that he was engaged in an essential occupation and not subject to induction, by sending the Draft Board a telegram and mailing it an affidavit, both of which contained false statements as to his occupation. The telegram, which was sent from New York, was as follows: "Received induction orders today for January 19th 1944. Am in complete surprise at not being reclassified from 3A which I received on April 14 1943 to 1A so that may have the civil right to appeal local board here cannot figure it out unless some mistake has been made. I would certainly be in receipt of any mail had you sent me a reclassification and would have appealed directly to you without further difficulty as I am now president of a defense plant making aeroplane parts with orders from the Army and Navy. Form 42A will follow. Please wire collect your decision." (Italics supplied.)

The form 42-A, which was verified by defendant and mailed from New York, contained statements as follows: "Name of Registrant: Morris Shurin. Selective Service Order No. 1673, Age 31. Local Board No. 2, Guilford County, Greensboro, N. C. Title of present job: Pres. and Manager of Entire Business. Describe duties actually performed: Placing all subcontracts, buying all tools. Running shop Inspecting all aircraft work for our Army and Navy planes. Consult on all our work for Ranger aircooled engines. Our contracts total about $600,000 dollars. In the last 60 days, we have shipped $135,000. * * * Name of company: Hudson Aircraft Products Co., 318 East 39th Street, New York City. Description of the activities of this company: Manufacture of 21 different parts for Army and Navy Planes such as bolts, samper rungs and crankshafts for Ranger Eng., Trainer and Fighter planes. State specifically what proportion of your products currently produced are: (a) for use in the war effort 100%. (b) for civilian use, None. Is expansion or further conversion contemplated in war production? Yes. Number of employees now 84. * * * This form was completed at the plant or office of the company located at Hudson Aircraft Prod. Co., 318 E. 39th Street, NYC and all correspondence relative to this affidavit should be so addressed." (Italics supplied.)

The statements as to the occupation of defendant contained in the telegram and affidavit were false. The Hudson Aircraft Products Company was not a manufacturing corporation at all but a mere trade name used by defendant, who had secured contracts from the Ranger Aircraft Company for the manufacture of parts for aircraft and had made contracts with manufacturers to produce these parts. He himself manufactured nothing, ran no shop and had no employees. He had no plant or office, but was allowed to use a desk in the office of a manufacturer who made the parts for which he had contracted, and to place a sign bearing the name of the Hudson Aircraft Products Company on a door of that office. His contention was that his relationship to the manufacturer was sufficient to show that he had no intent to mislead or deceive the Board; but this question was fully and fairly submitted to the jury and quite properly decided against defendant, who was manifestly nothing more than a contractor or middleman and who must have known that he was not entitled to classification as president of a corporation engaged in essential war work.

Questions raised as to the admissibility of evidence require no discussion. The fact that all of the statements contained in the affidavit were not mentioned in the indictment did not, of course, preclude their admission in evidence; and the questions asked of defendant as to his failure to produce witnesses in corroboration of his testimony and as to his gambling were proper as bearing upon his credibility. The scope of cross examination as to such matters rests largely in the discretion of the trial judge, and can furnish the basis for a new trial only where manifest abuse of discretion and resulting prejudice are shown. Nothing of the sort is shown here, and the jury were cautioned that the defendant's admissions as to participation in a gambling game were not to be considered on the question of his guilt or innocence.

The remaining point presented by the appeal relates to the refusal to transfer the case to the Southern District of New York for trial. As to this, it appears that defendant was...