(dissenting).
I dissent for reasons which will be stated in an opinion to be later filed. Among them is the doubt cast upon the decision in Hopper v. United States, 9 Cir., 142 F.2d 167, No. 10,110, a case now pending in this court on petition for rehearing, having the effect stated in the motion attached hereto and hereby- made a part hereof.
My opinion will await the decision of the court on this and a similar motion filed in Hopper v. United States.
Upon Motion of WILLIAM DENMAN, United States Circuit Judge for the Ninth Circuit.
To the Honorable CURTIS D. WILBUR, FRANCIS A. GARRECHT, CLIFTON MATHEWS, BERT EMORY HANEY, ALBERT LEE STEPHENS and WILLIAM HEALY, Judges of the United States Circuit Court of Appeals, for the Ninth Circuit:
Now comes WILLIAM DENMAN, United States Circuit Judge for the Ninth Circuit, and moves the court that it sit en banc for the consideration of the following questions involved in this case and in the case of Hopper v. United States, 9 Cir., 142 F.2d 167, No. 10,110, now pending on petition for rehearing in this court:
(1) Whether the indictment in Hopper v. United States fails to state a crime punishable under section 11 of the Selective Service and Training Act of 1940, 54 Stat. 894, 50 U.S.C.A. Appendix, § 311.
(2) Whether the opinion in Crutchfield v. United States properly creates a doubt in the correctness of the decision in Hopper v. United States.
Among other grounds for the motion is the importance of these two cases with reference to the certainty in the minds of the grand juries, and the United. States Attorneys of the circuit, as to the form of indictments in the many conscientious objectors’ cases arising in the circuit.
Dated, April 2nd, 1943.
WILLIAM DENMAN, United States Circuit Judge.