United States v. Mroz, 8207.

• Decision Date: 02 July 1943
• Docket Number: No. 8207.,8207.
• Citation: 136 F.2d 221
• Parties: UNITED STATES v. MROZ.
• Court: U.S. Court of Appeals — Seventh Circuit

136 F.2d 221 (1943)

UNITED STATES v. MROZ.

No. 8207.

Circuit Court of Appeals, Seventh Circuit.

June 3, 1943.

Rehearing Denied July 2, 1943.

Perry J. Stearns, of Milwaukee, Wis., for appellant.

Carl R. Becker, Asst. U. S. Atty., and B. J. Husting, U. S. Atty., both of Milwaukee, Wis., for appellee.

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

EVANS, Circuit Judge.

This appeal involves a conviction for violation (Sec. 311 of 50 U.S.C.A.Appendix) of an order of a local (Milwaukee) draft board to defendant to report for transportation "for work of national importance, as a conscientious objector," which order was issued under authority of the Selective Service Act. (50 U.S.C.A. Appendix, § 301.)

A jury trial resulted in a verdict of guilt, upon which a sentence of four years' imprisonment was imposed. Defendant is a member of the Jehovah's Witnesses society and claims the draft exempt status (IV-D) of a "minister" instead of the classification (IV-E) of a conscientious objector. The indictment was returned October 1, 1942, for violation of an order to report on July 20, 1942.

When defendant first registered for the draft he stated in his questionnaire, dated May 21, 1941, that he was working as a joiner for a shoe company, and he was classified as I-A. He claimed IV-D exemption as a minister. He also filled out the special form given to conscientious objectors. In 1943, at the time of trial, he was 32 years of age.

He appealed his I-A classification, February 28, 1942, and his case was forwarded to the state headquarters for review and then to the District Appeal Board in Milwaukee. The Board, pursuant to statute, referred the case to the Department of Justice whose "hearing officer," before whom defendant appeared at a two hour hearing, recommended a reclassification of defendant to IV-E (conscientious objector), and the Appeal Board unanimously so reclassified him, and a direction was issued to the local board to order defendant to report for transportation to a camp for conscientious objectors.

The Board issued such an order on July 8, 1942, directing defendant to report on July 20 for transportation to a conscientious objectors' camp in Michigan. It was this order, concededly received by defendant, which he refused to comply with and which failure on his part is the basis of this criminal prosecution and conviction.

Defendant's history as a member of the Jehovah's Witnesses sect is as follows: He first joined the society in 1937, at which time he was working full time in a shoe factory where he continued to work until the end of the year 1941. He went to the society's school for three years. He was promoted¹ in rank until February 1, 1942, when he became a "pioneer" which meant that he was a full time preacher. It seems that according to the society's tenets, a member is a "minister" from the very time he joins the faith, that is, to use the expression of the sect, when he makes his covenant with God. Such person may be and often is under ten years of age. But it was not until February 1, 1942, that defendant achieved his asserted status of a minister, as that term is generally used. In other words, he did not become a minister until after his draft board had classified him as I-A. He says he sought to notify the board of his new and exempt status, but the board refused to consider it on the ground that the matter was pending on appeal, and the file was out of its hands. The board member did not admit this, but said he could not remember such an incident.

The evidence discloses that all religious sects submit to General Hershey, Director of Selective Service, a list of their respective "ministers" (the Jehovah's Witnesses sect submits only a list of its "pioneers" and a few others of high rank). It does not list all of its members who "have covenants with God." These lists, thus received, are distributed by General Hershey to the states, and are there consulted whenever a claim of exemption is made. The Wisconsin list was consulted in this case, and defendant's name did not appear on it. The Appeal Board and the referee appointed to hear his case denied him the status of IV-D.

Defendant's contentions are: (1) He did not have a fair and impartial hearing by the local draft board or in the District Court (because of prejudicial statements of the District Judge and the District Attorney). (2) The question of whether he had a hearing in conformity with "due process" was a jury question, and the trial court here refused to submit that question to the jury. (3) The indictment was returned by a grand jury after the expiration of the term at which it had been impaneled. (4) The Selective Service Act is unconstitutional.

The oral argument of counsel at the hearing before this court was vehement in deriding the Selective Service Act and its administration. He contended, among other things, that military service constituted slavery and involuntary servitude in violation of the Thirteenth Amendment to the Constitution. To a greater degree, he argued, was the Selective Service Act violative of Amendment XIII and more clearly constituted involuntary servitude when applied to "a minister" who had conscientious objections to war, yet was sent to a camp without pay.

Expiration of Term of Court. Defendant argues that the term of court at which the grand jury was called had closed before the indictment in question was returned. In other words, the authority of the grand jury to act ceased before it voted the indictment against defendant.

The appellant relies on this court's decision in United States v. Johnson, 7 Cir., 123 F.2d 111. While this case is still pending in the U. S. Supreme Court, 63 S.Ct. 912, 87 L.Ed. ___, it is readily, in point of fact, distinguishable from the case before us. It may therefore be dismissed without a consideration of its holding.

Counsel's argument is predicated upon the assumption that the statutory January Term² of court at Milwaukee terminated because the statutory terms of court at Oshkosh and Green Bay, begin in June and April, respectively, and since there is but one judge to hold all three courts and he can be in but one place at a time, the term of court at one place must ex necessitae close in order that the term at the next designated place may begin.

This argument has been before several courts and rejected by all. In 1910, the Supreme Court said, in Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 48, 54 L.Ed. 1101, 21 Ann.Cas. 849,

"We think the purpose of the law was to provide for statutory terms of court for the northern district of Florida, beginning on the first Monday of February and March, respectively, which term should continue until the beginning of the next term, unless finally adjourned in the meantime. Such is the general and recognized practice in the circuit courts of the United States. * * *

"There was certainly no adjournment of the court for the term when the judge was absent, holding court at Tallahassee, or was out of the state." (Italics ours.)

In United States v. Perlstein, D.C., 39 F.Supp. 965, 968, Judge Maris stated:

"The conclusion has uniformly been reached that unless sooner adjourned sine die a stated term of court regularly opened at a time and place fixed by statute continues until the time fixed by law for the convening of the next term at the same place even though a term has commenced in the meantime at another place in the district. (citing cases.)" This case was affirmed without passing on this point in 3 Cir., 126 F.2d 789, certiorari denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752.

And in United States v. Rasmussen, 10 Cir., 95 F.2d 842, 843, the court said:

"A term of court does not automatically expire until the time fixed by law for the convening of the next term at that place, unless an order is entered expressly adjourning it sooner, even though terms may begin at other places in the meantime." (Italics ours.)

The distinction which appellant attempts to make as to these and other cases,³ namely, that there may have been a plurality of judges in such districts whereas in Wisconsin there is but one judge in the district, is unimportant, when it comes to construing the statutorily designated terms, having a specific commencement but no fixed termination. The aim of the statute was to provide a definite time for judicial service in each community having need of it, not to automatically terminate by inference a term expressly and specifically created by the same statute.

On the merits of this appeal a mere listing of appellant's grounds for reversal suggests triviality of merits.⁴ It must be borne in mind that the charge upon which the criminal sentence was imposed was a failure to obey an order of his local draft board for transportation to a conscientious objectors' camp. That appellant received the order, is conceded; that he intentionally disobeyed the order is clear. The Board issued its order only after it had been directed so to do, following an appeal of his case by appellant.

We can not ignore the seriousness of the issues which defendant presents. His challenge, if successful, would jeopardize the country's defense in time of war. That may have been defendant's object, or his action may have resulted from an over exaltation of self and minimization of the obligation of a citizen to society. Whatever his mental reaction to a war status may have been, the result is the same. Defiance of the authority of the state by the citizen has resulted in a test of that authority and a resulting expression of duty and obligation of citizen to his government.

That such expression of government and of citizen duty may be old and well recognized among nearly all good citizens of the land seemingly counts for little with those who write in large letters the duty of government to preserve itself and protect its citizens in time of war, but to exact nothing from citizens whose personal interest or convictions are...