Tomlinson v. United States, 13892.

• Decision Date: 15 September 1954
• Docket Number: No. 13892.,13892.
• Parties: John Alan TOMLINSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

216 F.2d 12 (1954)

John Alan TOMLINSON, Appellant, v. UNITED STATES of America, Appellee.

No. 13892.

United States Court of Appeals Ninth Circuit.

September 15, 1954.

Harold Snire, Beverly Hills, Cal., Hayden C. Covington, Brooklyn, N. Y., for appellant.

Laughlin E. Waters, U. S. Atty., Manley J. Bowler, Manuel L. Real, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

Tomlinson, convicted of refusing to be inducted in the armed forces of the United States, in violation of the Universal Military Training and Service Act, § 12, 50 U.S.C.A.Appendix, § 462, upon this appeal asserts that he should have had judgment of acquittal on the ground that the action of the boards which classified him was arbitrary and capricious, and that it was without basis in fact.

Tomlinson was placed in Class I-A-O, (conscientious objector available for noncombatant military service only). The points which he makes here relate to (1) his claim before the draft boards that he should be classified as a minister of religion, and (2) his claim that he should have been classified as a person conscientiously opposed to both combatant and non-combatant military service.

Tomlinson's argument with respect to his ministerial status is not that denial of such a classification was without basis in fact, rather it is that he was denied a full and fair hearing upon this point when he appeared before the local board. In this connection it is said that the trial court erred in excluding relevant and material testimony offered for the purpose of showing that the local board thus refused him the hearing he was entitled to. As for the asserted rejection of offered testimony, it is noted that the appellant's brief wholly fails to comply with that portion of our Rule 18, subd. 2(d), which states the requirements for making a specification of error of this kind.¹ Nevertheless, we have examined the record in this connection.

Appellant says that he attempted to give evidence to show that when he appeared before the local board he was denied the right to discuss his classification and to point out material in the file which he believed the board had overlooked. He argues that he was denied the opportunity to introduce evidence to show that he sought in vain to submit new and additional evidence when he was before that board.

The selective service file discloses that registrant supplied the local board with voluminous written statements relating to his claims for exemption. He attached to his original questionnaire a closely typed letter, more than two pages in length, containing an extensive statement of his claim as to his ministerial status, his right to deferment because of some dependent sisters, and his conscientious objection. This was supplemented by literature from the Watchtower Bible and Tract Society. A few days later he filed his SSS Form 150 relating to his claims of conscientious objection. To this were attached an additional four and one-half page exposition of his views as to his ministerial and conscientious objector status, written statements of his parents, and of a certain "company servant" of the group of Jehovah's Witnesses of which he was a member. Following his personal appearance before the board and his continuance by the board in Class I-A, he appealed to the appeal board, accompanying his appeal with an additional closely typed three and one-half page letter making further statements and arguments in support of his appeal, and this in turn was accompanied by extensive printed material.

At the trial Tomlinson was shown the page of his file which contained the local board's minutes of his personal appearance before the board. He then testified as follows: "Q. By Mr. Shire: Mr. Tomlinson, will you state to the court anything that you stated to the board which does not appear in this record on page 35 of Exhibit 1? A. I attempted to answer one of their questions about, would I go into the Army and fight for the country? When I attempted to use the Bible, as soon as I opened it up, why, one of the board members said, `Never mind what some man said about it. Let us hear what you have to say.' So then I said, `This is God's word, the Bible, and this is what I base my beliefs upon.' And I asked them how they could classify me properly unless they knew what I based my beliefs upon. And I do not see that in here.

"Q. Was there anything else that you said to them that does not appear there? A. Yes. I explained to them that I have had a religious training and background and that I was qualified for a minister's classification. And I showed how that I had been raised as one of Jehovah's Witnesses and that I was ordained on July the 6th of 1941, and I even had paper clippings and things there with me at the time which I was unable to present because of their changing the subject and going into something else.

"Q. Is there anything else? A. I don't recall anything else right at the moment."

Thereafter the court inquired of the witness whether he furnished anything to the board which did not appear upon the board's minutes and the witness answered: "Well, I explained a little more in detail than it has here, that I was in the position that Christ Jesus took when he was on the earth; that I considered those of my brothers were the ones who believed and had like faith, a faith like my own, because they asked me if I would fight to defend my family and my friends, and I said that I would, because I do believe in fighting and defending myself and friends and family, because they are of like faith."

His attention was then called to his four page letter to the appeal board and the following occurred:

"The Court: My question is this: Is there any information which you furnished the local board at the personal appearance hearing which is not embraced in your letter to the appeal board, which pages you have last identified in Exhibit 1? Do you understand my question?

"The Witness: I believe I do.

"The Court: In other words did you give the local board anything that you did not cover in your letter, which we have identified here, to the appeal board?

"The Witness: Well, I have not read this appeal letter for a little while and I wouldn't be able to say exactly."

This was the end of his testimony with respect to what he furnished or attempted to furnish the local board and there is no further proof or offer of proof upon this subject.

We find no basis whatever for any contention that the court excluded any offered testimony in respect to appellant's claim that the local board denied him a full and fair hearing. There is also absent from the record anything to indicate that the local board did in fact unfairly or unduly restrict or limit presentation upon his personal appearance before it. What happened here is almost precisely what happened to the registrant in Martin v. United States, 4 Cir., 190 F.2d 775, 778, in which the court held that the registrant could not complain because the board stopped him from reading passages from the Bible when the whole matter was fully covered by his letters.

An effort is made to show that appellant's opportunity for a full hearing before the local board was limited in another respect. This contention is based upon a portion of the minutes of the local board relating to appellant's appearance there on November 20, 1950, reading as follows: "Registrant presented facts of religious training, and belief. States that he is a Minister, but the Local Board feels that he does not qualify for such a classification, inasmuch as there has been no Theological training in a school, or background which would make him a minister. They feel that a Minister is one who has a regular following, and is Ordained." Placing his emphasis entirely upon that portion of the foregoing minute entry which refers to "no theological training in a school" and to the word "ordained", registrant says that this discloses that the board, in disregard of the law, manufactured its own definition of minister of religion. The effect of this, he says, was to deny him a hearing upon this issue. Says appellant: "The contention here is not that the ministerial claim was denied without basis in fact. It is that appellant has been denied his rights to a full and fair hearing upon his personal appearance." If the statement of the local board had no meaning other than that the board was requiring a showing of theological training in a school, or that a minister must necessarily be ordained, we would have little difficulty, if that question were before us in concluding that the local board's statement was incorrect as a statement of law.²

However, the board's minute entry is not susceptible of an interpretation that the board regarded theological training in a school as a necessary prerequisite for a minister. In substance, what the local board says was that there had been neither theological training in a school nor background which would make him a minister. The board further referred to his lack of a "regular following".³

True, the reference to ordination was incorrect, but any error which the local board may have made in this respect was precisely the sort of thing which the appeal board was set up to correct. Here the whole record went to the appeal board, along with Tomlinson's four page letter to that board. In that letter he dealt with the precise question, quoting the statements made by General Hershey concerning the position of Jehovah's Witnesses as recognized ministers and enclosing printed material containing the same quotations. If the local board erred in its use of the word "ordained", such error was cured by the action of the appeal board under the rule of Cramer v. France, 9 Cir., 148 F.2d 801; Tyrrell v....