United States v. Bergdoll

• Decision Date: 26 April 1921
• Docket Number: 12,13,,10,9,16.
• Citation: 272 F. 498
• Parties: UNITED STATES v. BERGDOLL et al. and four other cases.
• Court: U.S. District Court — Eastern District of Pennsylvania

272 F. 498

UNITED STATES v. BERGDOLL et al. and four other cases.

Nos. 9, 10, 12, 13,, 16.

United States District Court, E.D. Pennsylvania.

April 26, 1921

T. Henry Walnut, Asst. U.S. Atty., and Chas. D. McAvoy, U.S Atty., both of Philadelphia, Pa., for plaintiff.

Theodore Lane Bean, of Norristown, Pa., for defendants.

DICKINSON District Judge.

The trial of this case, so far as it involved the work of counsel concerned, was marked both by ability and conspicuous fairness. These two qualities go together. As a result the record is clear of objections to trial rulings, except those intended to raise clear-cut questions of law.

There were 5 indictments submitted, involving five defendants who were tried. The five tried were indicted with two others who were not tried. The 5 indictments involved a total of 40 separate counts. As counsel for defendants analyzes the counts of the indictments, all of them, except 2, charge either an individual act or a conspiracy with others to commit the offense of aiding Grover C. Bergdoll and Erwin R Bergdoll, soldiers in the military service of the United States, in deserting. These persons are the two named in the indictments who were not tried. The excepted counts are the fourth in the indictment which bears the number 9 and the third in No. 10. These indictments are against joint defendants; the others against individual defendants. These excepted counts charge a conspiracy to obstruct recruiting etc. The individual indictments make no charge of obstruction.

The first question raised, and, indeed, the only question of law raised, is whether or not the men not tried were in the military service of the United States. The value of the determination of this question lies on the surface of it. It is true that, inasmuch as each conspiracy indictment contained a count for obstructing recruiting, etc., the question of being in the military service would as to these counts be of no vital importance; but as 3 of the indictments upon which there was a conviction made no such charge against the particular defendant there concerned, the point raised is as to these indictments of controlling importance. Whether the fact is disclosed by this technical record or not, it is the fact that Grover C. Bergdoll and Erwin R. Bergdoll each are under the sentence of a military court for the military offense of desertion. This necessarily involves the finding that each was in the military service. The fact adverted to may be of no legal importance, but it does involve the possible practical consequence of having one finding made by one court and another by another court. Such a result would, of course, be regrettable; but none the less, inasmuch as the District Courts, as trial courts, deal with the rights of individual defendants before them, if it be the right of these defendants to have this question determined otherwise than as it has been determined by another tribunal, they must be accorded all their rights, whatever the consequences.

The argument addressed to us by the very capable counsel for the defendants is of crystal-like clearness. Without any purpose to paraphrase it, but merely to present the point sought to be made, it is that the Universal Service Act (Comp. St. 1918, Comp. St. Ann. Supp. 1918, Secs. 2044a-2044k) begins with the broad statement that all persons belonging to the described classes, with the exceptions enumerated, were liable to be called upon for military service. The two men involved in this case were admittedly so liable. The distinction is set up, however, between admissibility or liability to service and being in the service. The question with which we are confronted is not whether these men were eligible for induction, but whether they were actually inducted, into the service. The act of Congress provides the machinery of induction. A part of it is that the members of this eligible class shall appear before an appropriate board, clothed with power to determine, at least in the first instance, the liability of the individual to be called to service, his physical equipment for service, and the propriety of his being called into service.

There is a further machinery provided to bring the individuals concerned before the board, and to afford a full opportunity to reach the required decision by the board. When an individual is thus selected for service, there is a further machinery provided for bringing him in fact and reality into the service.

There is thus a dividing line, clearly recognized, if not drawn by the act of Congress, not only between those who are thus brought into liability to military service and those who are exempted out of it because of ineligibility, but also between all those who have been actually inducted into the service and those who have not been, although eligible to service and under an obligation to serve. This line is recognized, in that it is made an offense to obstruct recruiting, and thereby preventing an actual entry into the service, and it is also made an offense to desert from the service after having been inducted. These are offenses different in character by every test which can be applied for the purpose of distinguishing offenses.

A part of the machinery of induction, and the part with which we are concerned, is notice to the individual concerned. He was to have the notice provided in the act of Congress. This gave him, between the time of his selection and the time when he became actually in the service, 10 full days, exclusive of what are sometimes called 'lay days' or 'free days.' These days are defined by Congress.

The notice to Grover C. Bergdoll began with Monday, July 29, 1918, and ended with Thursday, August 8th. Excluding the day of commencement and the intervening Sunday, the count is 9 days, and not 10. In like manner, in the case of Erwin R. Bergdoll, the notice began on Monday, April 29, 1918, and ended with Thursday, May 9th. Striking out the day of the beginning of the notice and the intervening Sunday, we again have a count of 9 days.

A point which specifically and clearly raised the question now raised was presented to the trial judge and was negatived. If this was error, it was reversible error, and goes to every one of the indictments. The application to some of the indictments is clear, because the only offense charged involved desertion. It is true that each of 2 of the indictments contained a count which involved the offense of obstructing; but this latter charge was coupled with other charges, in the same indictment, involving the offense of desertion.

In the exercise of the discretion of a trial court, we think a new trial should be granted, if there was error in the instruction given to the jury. The effect of false instruction in this respect would be too uncertain to warrant us in sustaining any part of the findings. This brings us to face squarely the question of error or no error.

There are two or three general observations which are not out of place. The question raised involves the work of the selective service boards. Many of the men on these boards-- indeed, nearly all of them-- were without special training or experience in the work they were called upon to do. However willing we might be, because of this, to accept excuses for mistakes, we cannot, of course, condone errors which deprive others of their rights. At the same time, in reviewing their work, it would be nothing short of folly to hold them to the verbal niceties and sometimes almost painful preciseness and accuracy of special pleading. Every man appearing before them is to be upheld in every assertion of his rights. War, however, is a very practical kind of business, and battles might be lost and the doom of a nation sealed, if too great deliberateness prevailed in the councils of those in charge of the recruiting service. Here, as perhaps nowhere else, we are to look to the...