United States v. Moore, 11127

• Decision Date: 09 December 1954
• Docket Number: 11222.,No. 11127,11127
• Citation: United States v. Moore, 217 F.2d 428 (7th Cir. 1954)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Perry Bowen MOORE, Defendant-Appellant (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

217 F.2d 428 (1954)

UNITED STATES of America, Plaintiff-Appellee, v.Perry Bowen MOORE, Defendant-Appellant(two cases).

Nos. 11127, 11222.

United States Court of Appeals Seventh Circuit.

December 9, 1954.

Francis Heisler, Chicago, Ill., Pearl Baer, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., James B. Parsons, Asst. U. S. Atty., Chicago, Ill., J. P. Lulinski, Ann Lavin, Chicago, Ill., William T. Hart, Asst. U. S. Attys., Joliet, Ill., of counsel, for appellee.

Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Defendant appeals, in No. 11127, from a judgment of the District Court adjudging him guilty as charged in an indictment of one count of refusing to submit to induction into the armed forces of the United States in violation of the Universal Military Training and Service Act, as amended, 50 U.S.C.A.Appendix, § 462, and, in No. 11222, from an order of the same court denying his motion for a new trial on the ground of newly discovered evidence.

Defendant registered shortly after his eighteenth birthday.On the basis of his questionnaire, he was given a preliminary I-A classification.In May, 1951, defendant requested a personal appearance before his local board in order to get his classification changed from I-A to IV-E, the then classification for conscientious objectors to participation in war, the equivalent of the current I-O classification.He was granted a personal appearance on November 1, 1951.In his application for conscientious objector status (SSS Form 150), filed April 6, 1951, defendant had stated that he was conscientiously opposed to participation in war by reason of his religious training and beliefs acquired through his affiliation with the Church of Jesus Christ of Sullivan.This church, commonly known and hereinafter referred to as the Harshmanites or the Harshmanite church, is a semi-communal religious sect indigenous and confined to Sullivan, Illinois, and the surrounding vicinity.After his appearance, the local board, on November 5, 1951, classified defendant I-O, i. e., conscientiously opposed to participation in the armed forces in either a combatant or noncombatant capacity.

Meanwhile, the question of the draft status of certain other members of the sect had been, on November 1, 1951, presented to the State Appeal Board, which, between that date and December 13, 1951, classified each of the affected registrants I-A.On the latter date, after the files in these other cases had been returned by the state board to the local board, the latter reclassified defendant, placing him in class I-A.He appealed.On January 17, 1952, the local board placed in his file for the appeal board its written summary of the evidence considered by it in reclassifying him.The reasons given were "the consensus of opinion of the Local Board is that part of this religious group could not be I-A and the other part I-O when all hold to the same tenets of religion" and the weight accorded to a petition in the files, signed by some 354 residents of Moultrie County who "do not believe the members of this faith are true conscientious objectors."The state appeal board retained defendant in class I-A.

The National Director of Selective Service, General Lewis B. Hershey, having become interested in the Harshmanite cases, in July of 1953 processed an appeal in defendant's case to the Presidential Appeal Board.The latter reviewed defendant's file and placed him in Class I-A-O, i. e., opposed to combatant service but inductible in a noncombatant capacity.

Defendant was ordered to report for induction pursuant to the latter classification on October 21, 1953.He reported, and was accepted, but refused to submit to induction when ordered to do so.The indictment and his conviction followed.

Of the several contentions of error advanced by defendant for reversal of his conviction, we shall consider first the assertion that the trial court's refusal to permit him and certain other witnesses to testify deprived him of a fair trial.Defendant and these certain other members of the Harshmanite church were prepared to testify in his behalf but all refused on religious grounds either to take the oath or to make affirmation.Thereupon, the court refused to permit them to testify.

This was not error.Rule 26 of the Federal Rules of Criminal Procedure,18 U.S.C., adopts the principles of the common law as the rules governing questions of admissibility of evidence and competency of witnesses, except insofar as the common law has been expressly modified.The requirement of the testimonial oath has been embedded in the principles of the common law for hundreds of years, VI Wigmore on Evidence§ 1815, and, as relaxed, by Rule 43(d) of the Rules of Civil Procedure,28 U.S.C., which permits "a solemn affirmation" in lieu of the oath, is a part of the common law of criminal procedure applicable in the Federal courts.The constitutional right to a fair trial requires, in this respect, only that the court permit one charged with crime to call and qualify witnesses to testify on his behalf.The court may not exclude the testimony of witnesses who have been duly sworn and are competent to testify.But defendant cannot complain of the inability of himself and other witnesses on his behalf to bring themselves within the solemn requirements of testimonial capacity.

With two exceptions, to be considered separately, the remaining issues raised on these appeals are inextricably bound to, and will be considered with, defendant's principal contention that the judgment must be reversed because there is no basis in fact to support the December 13, 1951, decision of the local board changing his classification from I-O to I-A.It is argued that no new fact was before the board on that date which supported a reopening of his classification; that the board's reclassification of defendant because of his membership in the Harshmanite church was an unconstitutional denial of his rights of freedom of religion and equal protection of the laws and beyond the statutory authority of the local board; that the petition of residents of Moultrie County could not have constituted a valid reason for his reclassification; and that a new trial should have been granted on the ground of newly discovered evidence that all facts before the local board at the time of reclassification were known to the board prior to the time when it classified defendant I-O.

Although apparently this is the theory on which the trial court considered the basis in fact question, the premises are misleading in that they misconstrue the nature of the functions of the administrative agencies provided for by Section 10(b)(3) of the Act, 50 U.S.C.A.Appendix, § 460(b)(3).The three separate agencies, i. e., the local board, state appeal boards and the Presidential Appeal Board, are given concurrent power to determine all questions or claims with respect to classification.The appeal boards are in no judicial sense appellate agencies, but are, rather, agencies superior to the local boards, which consider anew each application referred to them, and determine, on the basis of their own proceedings, the appropriate class for the affected registrant.A classification given by an appeal board is not, therefore, merely an affirmance of the action of an inferior agency, but is the independent act of such board.

Undoubtedly, the confusion which prevails on this question results, as the government suggests, from the fact that only the local board deals directly with the registrant.Notice of the result of a classification hearing before any appeal board is sent to the affected registrant's local board, which in turn, sends an appropriate notice to the registrant.Likewise, all orders for examinations and induction emanate from the local board, whether based on its own classification or one fixed by its superior agencies.This procedure does not, however, make the action of the appeal board that of the local board.

The "basis in fact" issue in a criminal action brought under the Act is solely a question whether the selective service file which was before the agency which considered the case most recently in point of time reflects a basis in fact to support the classification given by such agency, the classification on which the registrant's induction order is based.

In Cramer v. France, 9 Cir., 148 F.2d 801, the defendant seeking to set aside an induction order based on an appeal board classification, relied on evidence that the local board was prejudiced against him.The court said at pages 804-805: "In view of the fact that the hearing before the appeal board was de novo, United States v. Pitt, 3 Cir., 144 F.2d 169, * * * the prejudice of the members of the local board, if any, was not relevant to the record. * * * we think the trial court is right in its assumption that appellant, having taken an appeal from the local board to the appeal board and secured a ruling of the latter as to his classification, cannot now complain to the court concerning the conduct of the local board.The action of the board of appeals completely supersedes the action of the local board in classifying appellant, although the classification is the same."In Tyrrell v. United States, 9 Cir., 200 F.2d 8, certiorari denied345 U.S. 910, 73 S.Ct. 646, 97 L.Ed. 1346, the defendant contended that the local board, in summarizing for the file on appeal the oral evidence on which it had ruled in classifying the defendant as I-A, had omitted reference to the religious significance of certain work done by him.The file before the appeal board, however, contained documents relating to that subject.The court affirmed a judgment of conviction, saying in 200 F.2d at page 11: "It will be presumed that the Appeal Board gave consideration * * * to the entire file before it in evaluating the registrant's status and classifying him as I-A.Such action completely and...