(expanding his dissent).
On April 2, 1943, my dissent was noted to be expanded in an opinion to follow the decision of my motion for a hearing en banc in this case and in Hopper v. United States, No. 10,110, also pending here on rehearing.
This case (Crutchfield v. United States) was decided by the court in separate opinions by Judges WILBUR and HEALY. Judge HEALY indicated his view that the Hopper case was a wrong decision and should be decided otherwise by the court en banc, stating, “My views of the subject of criminal pleading are so totally at variance with the holding in Hopper v. United States, recently decided, that I prefer not *178to regard that case as authority by which the full court will ultimately feel itself bound.”
Judge WILBUR added his doubt of the correctness of the Hopper decision, stating : “Since this case was argued, the Hopper case has been decided (December 18, 1942, 142 F.2d 167), and similar defects in that indictment were held to be fatal. If that decision is correct, this indictment is likewise fatally defective and the verdict or, in this case, the judgment of the court, did not cure the error.” (Emphasis supplied.)
Judge WILBUR’S opinion then emphasizes his belief of the decision’s doubtful character by showing the existence in the Crutchfield record of the proof at trial of every fact necessary to cure a defective but not void indictment and proceeding to consider the appeal and its merits.1
All three judges (Judges MATHEWS and STEPHENS and myself) concur in the Hopper decision. With the confusion in the circuit caused by the divergent views of three judges against two, in the two cases still pending before the court, the necessity arises for a hearing en banc under the principle stated in Textile Mills Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249. The Supreme Court, in holding the circuit courts of appeals may hold en banc sessions, states (pages 334, 335 of 314 U.S., page 277 of 62 S.Ct.): “ * * * Certainly the result reached makes for more effective judicial administration. Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially important in view of the fact that in our federal judicial system these courts are the courts of last resort in the run of ordinary cases * * *.”
Furthermore, in that case the Supreme Court declares the individual judicial right of each of the seven judges of this court to participate in the hearing and decision of any case before it.2 Thus is clearly indicated the right of participancy of Judges GARRECHT and HANEY in the question whether the full court will, at least, entertain a motion aimed to resolve such confusion.3
Since I presided in the Hopper hearing and am the one judge who heard both these pending cases, and agree with Judge HEALY that the conflict should be resolved by the “full court,” I filed in each case the following identical motion, addressed to Senior Circuit Judge WILBUR and the other judges:
“Now comes WILLIAM DENMAN, United States Circuit Judge for the Ninth Circuit, and moves the éourt that it sit en banc for the consideration of the follow*179ing questions involved in this case and in the case of Hopper v. United States, 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.”
Prior and subsequent to filing these motions, copies were given Judge WILBUR and I asked him to convene the full court in chambers to enable me to present the motion for, at least, the court’s consideration. His answer on both occasions was emphatically that he would not.
This dissent is, in part, from Senior Circuit Judge WILBUR’S refusal so to convene the full court. In so frustrating a consideration of the motions, the senior circuit judge, in my opinion, is unreasonably denying due judicial process affecting the following:
(1) Judge HEALY, who, as a member of this court, properly desired for the litigants and the bar of the circuit in scores of conscientious objectors’ cases now pending, the “full court” to consider his claim in the Crutchfield case that the Hopper decision is not one by which the court “will ultimately feel itself bound;” as well as myself, the moving judge, and my two associates in the Hopper case, whose decision in favor of Hopper is called in question;
(2) The United States, the unsuccessful litigant in the Hopper case, now contending on petition for rehearing that Hopper is a criminal, who, under our decision, is permitted to be at large when he should be in the penitentiary serving a two year sentence ;
(3) The grand juries and the United States attorneys drawing indictments in the many Selective Service violations;
(4) The bar and litigating public generally who find so obstructed the due and orderly process for the removal of such confusion and smearing of the circuit’s judicial pronouncements.
Since I believe one or the other of the affected litigants will find more effective than that of a judge of this court a demand that at least a motion be entertained and heard to remedy such a condition, I shall withhold my discussion of what seem other confusions in the court’s opinion in the hope that consideration en banc will make the discussion unnecessary.
Judge Wilbur’s opinion states that “As pointed out above, the defects in the indictment are the failure to allege that the appellant was classified in class IY-E (conscientious objectors assignable to civilian work camps) or 'at all, and the failure to allege that the board bad ordered appellant to report to such a camp duly established for that purpose. The record shows, however, that these things were in fact done, and were known to appellant to have been done. Their omission from the indictment in no way prejudiced his defense. The indictment indicated the nature and date of the offenses charged; this was sufficient to enable appellant to prepare his defense, and is sufficient to prevent another conviction for violation of the same orders. * * * ”
“We cannot conclude, however, that the word ‘court’ as used in those other provisions of the Judicial Code means only three judges. That would not only produce a most awkward situation; it would on all matters disenfranchise some circuit judges against the clear intendment of § 118 [28 U.S.C.A. § 213]. Nor can we conclude that the word ‘court’ means only three judges when the court is sitting, but all the judges when other functions are performed. Certainly there is no specific authority for that construction. And it is difficult to reach that conclusion by inference. For .to do so would be to imply that Congress prohibited some circuit judges from participation in the most important function of the ‘court’ (the hearing and the decision of appeals), though allowing all of them to perform the other func-tions [making rules, appointing clerks, etc.]. Such a prohibition as respects' the ordinary responsibilities of a judicial office should be inferred only under compelling necessity, since a court usually will consist of all the judges appointed to it. That necessity is not present here. * * * ” Textile Mills Corp. v. Commissioner, 314 U.S. 326, 333, 62 S.Ct. 272, 277, 86 L.Ed. 249.
In three of the four cases heard by this court en banc, the court acted sua sponte. On the request of one or more of the judges, a full court was convened in chambers by the Senior Circuit Judge. There motions were made and carried by a vote of the judges.