Venus v. United States, 15953.

• Decision Date: 17 February 1959
• Docket Number: No. 15953.,15953.
• Parties: Carlin Constantine VENUS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

266 F.2d 386 (1959)

Carlin Constantine VENUS, Appellant, v. UNITED STATES of America, Appellee.

No. 15953.

United States Court of Appeals Ninth Circuit.

January 8, 1959.

Rehearing Denied February 17, 1959.

Hayden C. Covington, Brooklyn, N. Y., Kenneth A. Barwick, Lemon Grove, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert D. Hornbaker, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before FEE, CHAMBERS and BARNES, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

Venus was indicted for knowingly failing to report for induction into the armed forces of the United States in violation of 50 U.S.C.A.Appendix, § 462(a).¹

Venus registered with Local Board No. 140, in San Diego County, California, on September 15, 1948. There is no need to review the episodes previous to the order here charged, except to note that defendant claimed to be a conscientious objector and on one occasion, before the series of incidents upon which the current indictment was based, obeyed an order to report for induction but refused to be inducted. After that, at a time when his file was out of the possession of the Local Board, defendant, according to his testimony at the trial, mailed a postal card in February, 1955, giving a change of address from Modesto to San Diego to the Board. No such postal card ever got into the file of the Board. On July 11, 1955, the file of defendant was returned to the Local Board. The Local Board ordered defendant to report for induction on November 8, 1955. This order was sent to the last address of defendant shown in the file of the Local Board. This was in Modesto, California. Defendant did not report on November 8, 1955. At no time thereafter did defendant formally report for induction.

Defendant testified that he first knew of the order of induction in April, 1956, when he was told by an agent of the F. B. I. He thereupon wrote a letter to the Local Board, but received no response.² About a year later, he did go to the Local Board and inspect his file.

In reading the transcript, the evidence of mailing of the order appears substantial. There was no direct proof that the particular envelope containing the order was actually deposited in a United States mail box. But there was positive evidence that the order was made in due course, placed in an envelope properly addressed to Venus, and thereupon deposited in the regular box from whence mails of that office went to the United States mail box. The office duplicate of the order had been marked with the initials of the Board member signing the original. Most important of all, there was marked on this duplicate order the word "Mailed." This is an entry made in an official document and imports verity of the contents. Unquestionably, there was substantial evidence to go to the jury which tended to establish mailing of the order.

There is no doubt the order was addressed to Modesto. This was the last mailing address which appeared in the files of the Local Board. Therefore, according to law and regulation, the Local Board could not properly have mailed the notice to any other address. There was thus substantial evidence that the order was duly mailed to the appropriate address.

Here another factor enters. Venus testified that he mailed a postal card to the Local Board giving a change of address from Modesto long before the order was issued. This testimony is corroborated in some degree by another person who testified he accompanied Venus to the Post Office when the latter mailed a postal card. At the time, the file of the registrant was not in the possession of the Local Board. Since the card did not appear in the files, the presumption of official duty performed carries weight. The Local Board did not have the card. It may well be inferred they never had it. The jury might also have disbelieved the testimony of Venus that he mailed the card.

The trial court refused to give instructions requested by defendant relating to the proof of mailing and the presumption of receipt of letters duly deposited in a United States Post Office. There were also instructions requested which highlighted the testimony that defendant claimed not to have received the order and the fact that he claimed to have mailed a change of address card to the Local Board. Criticisms of the instructions given and refusal of requests are technically correct in part. The implications will be considered later. The trial court gave strongly worded instructions, favorable to defendant, requiring knowledge upon the part of Venus before conviction for failure to report on November 8, 1955.³

But the case must be reversed. The trial court laid great weight in the instructions upon the continuing duty of Venus to report for induction after the critical date specified in the order. We take no exception to this instruction standing alone. There is generally such a duty. However, the record shows Venus became twenty-six years of age upon the nineteenth day of December, 1955. There is doubt whether there was any machinery by which he could have been legally...