United States v. Archer, No. 71-1167.

• Decision Date: 14 February 1972
• Docket Number: No. 71-1167.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny Craig ARCHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

455 F.2d 193 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Danny Craig ARCHER, Defendant-Appellant.

No. 71-1167.

United States Court of Appeals, Tenth Circuit.

February 14, 1972.

Richard J. Spelts, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.

Harris D. Sherman, of Sherman, Quinn & Sherman, Denver, Colo., for defendant-appellant.

Before HAMLEY,^* SETH and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

In a trial to the court Danny Craig Archer was found guilty of a violation of the Selective Service Act of 1967. 50 App. U.S.C. § 462(a). The specific charge was that

"* * * from on or about the 7th day of July 1970, and continuing to the date of filing of this indictment the indictment was filed October 6, 1970 * * * DANNY CRAIG ARCHER, wilfully and knowingly did fail and neglect to perform a duty required of him under and in execution of the Military Selective Service Act of 1967, and the rules, regulations and directions duly promulgated thereunder, in that he did fail and neglect to comply with an order of his local board to report for and submit to induction into the Armed Forces * * *."

It is conceded that on June 16, 1970, an order was mailed Archer setting an induction date of July 7, 1970, and that such order was duly received by Archer. It is also admitted that Archer did not appear for induction on the appointed date. Archer, however, did appear for induction on July 8, 1970, on crutches as the result of a bullet wound in the left fourth toe. The fact that Archer did appear one day late, ostensibly for purposes of induction into the Armed Forces, is the root of the present controversy.

Archer first argues that the evidence does not support the charge, pointing out that he was charged with failing to report for induction on July 7, 1970, and "continuing to the date of the filing of the indictment"; whereas, the evidence showed that he did appear for induction on July 8, 1970. The Government's position on this matter is that the allegation "continuing to the date of the filing of the indictment" is surplusage and that the gravamen of the charge is that Archer wilfully and knowingly failed to appear for induction on July 7, 1970. We agree with the Government.

Mere surplusage in an indictment may be disregarded and such disregard does not render the indictment invalid if sufficient remains to charge a crime. Bary v. United States, 292 F.2d 53 (10th Cir. 1961). It is not essential that everything in an indictment be proved. It is only necessary to prove so much thereof as establishes, prima facie, that there has been a violation of the statute involved. Gambill v. United States, 276 F.2d 180 (6th Cir. 1960).

We deem the essential elements of the present charge to be: (1) That Archer was ordered to report for induction on July 7, 1970, at 6:30 A.M.; (2) that Archer received said order; (3) that Archer failed to comply with the order to report; and, (4) that he did so wilfully and knowingly. In a somewhat analogous situation, it was held in United States v. Tucker, 374 F.2d 731 (7th Cir. 1967), that the only essential elements of the charge there under consideration were whether the Board ordered the defendant to report for civilian work, whether the defendant received notice of the order, and whether he reported as ordered. See also Williams v. United States, 203 F.2d 85 (9th Cir. 1953), cert. denied, 345 U.S. 1003, 73 S.Ct. 1149, 97 L.Ed. 1408 (1953), where it was held that proof that one "wilfully stayed away from the induction center with full knowledge of the order was sufficient." The fact that Archer appeared at the induction station on July 8, 1970, is admissible evidence bearing on the issue of his wilfulness in failing to report on July 7, 1970, but does not ipso facto preclude a conviction for wilfully failing to report for induction on July 7, 1970.

Concerning the issue of wilfulness, the trial court found, inter alia, that Archer wilfully failed to report for induction on July 7, 1970, and Archer contends on appeal that there is...