United States v. Hoffman

• Decision Date: 26 July 1943
• Docket Number: No. 315.,315.
• Citation: 137 F.2d 416
• Parties: UNITED STATES v. HOFFMAN.
• Court: U.S. Court of Appeals — Second Circuit

137 F.2d 416 (1943)

UNITED STATES v. HOFFMAN.

No. 315.

Circuit Court of Appeals, Second Circuit.

July 26, 1943.

Joseph S. Byrne, of Brooklyn, N. Y. (Byrne & Byrne, of Brooklyn, N. Y., on the brief), for defendant-appellant.

Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y. (Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y., on the brief), for plaintiff-appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Defendant, Robert Carl Hoffman, a youth of twenty, having been found guilty by a jury of failing to report for induction into the Army of the United States, appeals from the judgment and sentence by the court to the maximum term of imprisonment of five years provided by the statute, 50 U.S.C.A. Appendix, § 311. While defendant's own testimony was sharply in conflict with the evidence for the prosecution, there was clearly evidence to sustain the conviction and the question before us is whether reversal is required by errors in the trial.

Defendant was born in Germany on July 6, 1922, of a German mother and an American father, a soldier who had served in the American Army of Occupation in Germany following the armistice of 1918. He was brought to this country as an infant and has resided here since. On September 25, 1942, he filed his Selective Service questionnaire with his Draft Board, but attached to it a letter in his handwriting, which expressed his unwillingness to fight against his German relatives or to serve except on condition that he be placed in a noncombatant unit for service within the defined boundaries of the United States. The importance of this letter in the case compels quotation. Addressed "To Whom it may concern," it stated that the writer felt it his duty to make known "the following facts" as to his service in the armed forces of the United States, and that though he was "most certainly a Catholic," yet his religion did not instruct him to be against war or to be a conscientious objector, though he felt his conscience "does rule me in this matter." It continued:

"I am German born, of a German born mother. Many relatives, on my mother's side are now residing in Germany. To fight against these people would be to destroy my own family. I care not if they are Nazi's or otherwise. I consider myself a part of them and they a part of me. Nor could I force myself to fight against any of German's allies. They are Germany's friends and thereby are the friends of part of my family. I could never in all clearness of conscience, cut their throats.

"Once again, I wish to make it known. Religious training does not enter into this matter.

"In regard to serving the United States of America, I hereby declare:

"I will serve the American Army on the following conditions:

"1st — That I be placed in a non-combattant unit and —

"2nd. That this unit will be of serve only within the defined boundaries of the United States of America.

"I have a knowledge of stenography. Perhaps, I can be of some service in the clerical field."

And it ended, "For considering this statement, the reader has my full appreciation."

Obviously such an attitude as was here disclosed could lead only to trouble if persisted in. The country's laws require military service of its citizens even with enemy relatives; and other young men in similar positions have had to respond, and have done so without cavil. Indeed, after this letter the question for the various public officials involved was substantially whether attempts at dissuasion were worth while, or whether, as they seem soon to have concluded, speedy trial and incarceration was the only outcome to be looked for.

Thereafter, as was his right, defendant requested a hearing of the Board, which was granted him on October 6, 1942. A member of the Draft Board testified at the trial that defendant was asked whether his objection equally applied to Japan and Italy and that he answered that it did, that they "were allied with Germany and that he would feel equally in their case that, if he were to serve, he would be cutting the throats of his relatives in Germany. The Board then told him they felt that he was misinformed and misguided, and asked if he had discussed his position with his pastor. He said he had not; and the Board recommended that he see his pastor and discuss the case and report back to the Board."

Although defendant attempted to show at the trial that he had talked with his priest, who advised him to serve, and that he had so reported to the Board, this hearing seems to be the only personal contact he had with the Board itself, which proceeded to his classification in apparently routine manner. He had been directed to go to a doctor at Laurelton, Long Island, for his physical examination and Wasserman test, which he did; and he was classified 1-A on October 8. He was then directed to report for induction into the Army on November 24, 1942, at 8 a. m. at the Board's quarters in Jamaica, Long Island. The charge against him is that "he, the said defendant, did unlawfully, wilfully, and knowingly fail and neglect to report for such induction at the time and placed sic fixed in said notice." What transpired on that morning is the crux of the case. But the trial developed the sharpest conflict between the two persons present, Miss Ellen Mathews, the chief clerk of the Board, and defendant. Admittedly defendant did not appear at that hour, but did appear later in the morning. Miss Mathews testified that he appeared at about 10:30 a.m., but definitely refused to serve, as "he figured that the United States has stabbed Italy and Japan in the back." He himself testified that he came at about 9, having talked with his priest and being prepared to go, as he stated to Miss Mathews. Miss Mathews also testified that it was the custom of the Board to send late arrivals to the Grand Central Station, for which the other registrants had already left, but that she did not follow that course in this case because of defendant's refusal to serve. She stated that she directed him to appear that night for a conference with the appeal agent, while his version was that he was to come back that night "and consult with the F. B. I."

Since it was conceded that defendant's delay in arrival would not alone have been regarded as harmful — and this accords with the Regulations, 32 CFR, 1941 Supp., 633.12(b) — the real question is as to his intent when he arrived; and this is the issue which the court submitted to the jury. This seems proper; the statute requires something more than mere failure, for the accused must "knowingly fail or neglect to perform" a statutory duty. 50 U.S.C.A. Appendix, § 311; United States v. Trypuc, 2 Cir., June 11, 1943, 136 F.2d 900. That the court interpreted this language as meaning the usual criminal intent seems also correct. Cf. Nosowitz v. United States, 2 Cir., 282 F. 575, 578; United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381; Townsend v. United States, 68 App.D.C. 223, 95 F.2d 352, certiorari denied 303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121. As bearing upon this point the court admitted defendant's letter of September 25 over his objection, as well as certain statements, not objected to, made by him to F. B. I. agents after his arrest. And in its charge the court read the letter in full to the jury, saying, "Well, he has that presumption — and I cannot avoid using the phrase in describing the letter — to state on what conditions he will serve," and that "this letter expresses an attitude of mind which is important perhaps only in this case so far as it bears on whether he was or was not willful in his failure to report for induction." And it also referred to the statements taken by the F. B. I. as "further evidence of that state of mind in respect to willfulness" and "which in effect confirm the original expression of the letter of September 25, 1942."

Defendant now assigns as reversible error the admission of these documents as being wholly without the indictment and particularly calculated to inflame the minds of the jury. Passing for the moment a question discussed below as to the admissibility of the statements to the F. B. I., it seems clear, nevertheless, that however inflammatory the statements were, they were properly admissible on the question of intent, the central point of the case. Only as the jury had the background of defendant's approach to selective service in the armed forces would they be able properly to appraise his conduct at the time of induction. But if this is true, we think it equally clear that certain testimony offered by defendant and excluded by the court dealing with the reason for his delay in appearing for induction was also admissible. The fact that he appeared at all somewhat tended to show that his attitude was not one of complete defiance, as did also his response to the other requirements, such as taking the physical examination. If he had a reasonable and natural excuse for his delay, that would bear directly upon his intent and hence upon the issue between himself and Miss Mathews.

Nevertheless, while statements as to his intent at other times than on the morning in question were admitted for the prosecution, his own attempts to show a natural reason for his delay, and thus to negative proof of his defiance, were rigorously checked. The direct question as to what delayed him was excluded, as well as questions both to him and to his father, designed to show that he had gotten up preparatory to reporting for induction when his mother became hysterical and fainted, and that he and his father tried to attend her and finally put her to bed, after which he left for induction. As having some bearing, too, on the issue, evidence should have been taken, as offered, that he had given up his job as messenger, stock and mail clerk, and elevator man for a Catholic religious publishing house, and that his associates had given him a gift against his induction. In this connection...