Springer v. United States, 10753.

Citation148 F.2d 411
Decision Date21 March 1945
Docket NumberNo. 10753.,10753.
PartiesSPRINGER v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Bates Booth, of Los Angeles, Cal., for appellant.

Charles H. Carr, U. S. Atty., and James M. Carter and V. P. Lucas, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

WILBUR, Circuit Judge.

The appellant was convicted of a violation of the provisions of the Selective Training and Service Act of 1940, 50 U.S. C.A.Appendix §§ 301 et seq., in that he knowingly and wilfully failed to report for induction when ordered so to do. This is an appeal from the judgment and sentence.

Neither the assignments of error with reference to the exclusion and introduction of evidence, nor the assignments of error with relation to instructions to the jury, conform to our rules and, therefore, need not be considered. Appellant also assigns as error the denial of his motion to dismiss and the denial of his motion in arrest of judgment.

Before a further consideration of the case a general statement of the facts and the manner in which the points arose, should be made.

Defendant testified and also argued the case in person to the jury. It appears therefrom that his contention is that he is a minister of the gospel, a member of Jehovah's Witnesses; that he received a notice to report for induction on December 23, 1943, after being advised of his classification as A-1, and that he failed to report for induction, not for the reason that he had any intention of submitting to the jurisdiction of the military authorities but because he felt that he might secure from higher authority a reversal of the decision that he belonged in Class A-1.

When the appellant was arraigned he was informed of his right to be represented by counsel; he replied that he did not desire counsel; nevertheless the court appointed two competent attorneys to represent him but he refused their assistance. Appellant was arraigned on April 3, 1944. The case was set for trial for April 5, 1944, notwithstanding the request of the appellant for a delay of a week "because of information to be received from the Watchtower Bible & Tract Society which is on its way, and for information from my brother in the armed services."

The failure to give the additional time to prepare for trial is presented as ground for reversal but no exception was reserved at the time of the ruling, nor was there any application for a continuance at the time of trial. The application for a week's delay was not supported by affidavits nor by any statement of facts which called for delay. There was no error in refusing a delay in the trial.

Evidence was introduced showing that on June 6, 1941, the defendant was classified by Local Board 201 in class IV, sub. D (minister) by a vote of three to one. Later, on September 9, 1943, in regular course, appellant was classified class 1, sub. A, by the Board of Appeal.

At the conclusion of the government's evidence, defendant moved to dismiss the cause and discharge the defendant upon the ground of failure of proof. This motion was properly denied. Thereupon the defendant offered as witnesses Irna S. Kielhofer, Lois Phillips, Mabel Anderson, Jack Talbert, and Dorothy Zweigart. The general purpose for which these witnesses were offered was to prove good conduct on the part of the appellant. When appellant stated that he wanted to show that he "hadn't been a law breaker, or something to my favor", the court said, "You are presumed to be innocent of all crimes, including the crime with which you are charged"; that evidence of character was not admissible.

While the witness Dorothy Zweigart was on the stand, the court stated to the defendant that he had a right to put into issue his reputation in the community in which he lived and that the government had a right to rebut that evidence, but that every person is presumed to have good character. The defendant stated he still wanted to bring it out and the court stated he could if he laid the proper foundation. Whereupon, at the suggestion of the United States attorney the court examined the witness with a view to ascertaining her familiarity with the reputation of the appellant. Upon questioning this witness the court concluded that she was not competent to testify to the general reputation of the defendant for truth, honesty, and integrity, and sustained the objection of the United States attorney. No exception was taken by the appellant.

Melvin P. Sargent was called by the defendant. He was permitted without objection to testify that the general reputation of the appellant for truth, honesty and integrity in the community in which he lived was good. Appellant offered an affidavit from his brother, who was in the armed services of the United States, which was objected to. An application for a continuance of the trial to secure his testimony was also denied. It appears that the appellant desired his brother to testify as to his good character. Therefore, the testimony was merely cumulative and there was no ground for continuance of the trial.

Gordon E. Russell, testified for the defendant, but as he stated he did not know the reputation of the defendant in the community in which he lived objection to the offered testimony was sustained. No exception was reserved by the appellant.

Clarence Newcomb was called by appellant to testify to his reputation in the community in which he lived but objection was sustained, the witness having stated that he did not know his reputation in the community in which he lived.

John J. Springer, a brother of defendant, testified that defendant's reputation was very good.

Oscar Forsberg testified that the reputation of the defendant for truth, honesty and integrity, in the community in which he works is excellent.

At this juncture appellant asked the court to appoint an attorney to represent him in the trial. The court permitted Bates Booth to be associated in the defense of defendant and the defendant designated Mr. Booth as his attorney. Thereupon the appellant took the witness stand in his own behalf. He testified he is an ordained minister representing the Watch-tower Bible & Tract Society and had occupied such position for 12 years. He stated that the Appeal Board classified him as A-1 and that he did not report for induction as ordered. Defendant was asked on direct examination, "What intent was in your mind at the time that you failed to report to the draft board?" The court sustained an objection to the question. The court thereupon asked the witness: "Did you wilfully intend not to report, regardless of what your reasons were? * * * I mean report to the Army for induction." The witness: "Well I didn't do that because I wrote to them, and at that time I also wrote a letter to Washington, D. C., in order to hear from them to stay induction until they could properly hear it."

The witness further testified that he received the original order to report for induction at 7 a.m. on December 23, 1943; that he did not report in person, but instead wrote a letter to the draft board to delay it. The court held that letters written by him after he had received his notice for induction were too late to be admitted in evidence.

An additional character witness was introduced by appellant. Thereupon, appellant rested and moved to dismiss the case on the ground the evidence did not sustain the burden of proof as to the element of criminal intent. Motion was denied.

Counsel for the United States waived opening argument and the defendant requested the court's permission to argue his case personally. The court granted the request but warned the witness that he could not argue the classification of the...

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  • Brown v. Haynes
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    • U.S. District Court — Western District of Missouri
    • November 8, 1974
    ...385 U.S. 978, 87 S.Ct. 521, 17 L.Ed.2d 440 (1966); Hawley v. United States, 133 F.2d 966, 972-973 (10th Cir. 1943); Springer v. United States, 148 F.2d 411 (9th Cir. 1945). Similarly, a trial judge is not required to submit a character instruction to the jury where the evidence admitted is ......
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    ...381 F.2d 17, 19 (9th Cir. 1967); Kaplan v. United States, 234 F.2d 345, 348 (8th Cir. 1956).11 453 F.2d at 333.12 Springer v. United States, 148 F.2d 411, 416 (9th Cir. 1945).13 See Note, Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181, 203 (1967).14 Merely because a convicted ......
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    ...a modern day Hester Prynne.4 This sort of condition is simply improper under the Sentencing Reform Act. See also Springer v. United States, 148 F.2d 411, 415-16(9th Cir.1945) (invalidating a condition that a convicted draft dodger donate a pint of blood to the Red Ballenger v. State, 210 Ga......
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