Rusk v. United States

HOLMES, Circuit Judge.

This appeal is from a judgment wherein the defendant (appellant here) was sentenced to confinement for a period of two years. The execution of the sentence was suspended and the defendant placed on probation upon certain terms and conditions, one of which was that the defendant, on or. before August 14, 1945, should report to his local draft board for compliance with the order that he report for work of national importance under civilian direction, and obey all lawful orders relating thereto.

The indictment charged that the defendant was required to and did register under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 301 et seq.; and that thereafter, having become a delinquent under said Act, as amended, the defendant knowingly and feloniously did fail to perform a duty required of him, in that, having been classified as a conscientious objector, category 4-E, and having been found by his local draft board to be acceptable for work of national importance, he feloniously failed and neglected to report to said board to be transported to a designated camp, the same being a work camp of national importance under civilian direction.

After a motion to quash the indictment was overruled, the defendant waived arraignment, pled not guilty, and went to trial on the merits before a jury. At the close of the trial, a verdict of guilty was returned. The court’s charge to the jury was signally free from error against the defendant, and no exception was taken thereto by either side. The only questions properly before us at this time are (1) whether the indictment states an offense against the United States, and (2) whether there was sufficient evidence to support the verdict. We direct our attention to the second question, as the first requires no discussion.

-The evidence shows that the defendant, after a hearing, was first classified as a minister in class 4-D, but that later, upon its own motion, the board reconsidered the case and reclassified the defendant, putting him in class 4-E, which is the class provided for conscientious objectors. It further appears that notice of the order reclassifying him was duly served upon the defendant, and that he wilfully failed and refused to obey the order of the board directing him to report for assignment to work of national importance.

The appellant contends that the-order which he violated was void; that he was a regular minister of the gospel (of Jehovah God, as he himself puts it), and that as such was exempt from the provisions of the Act; that he was given no-hearing before the board on the issue of his reclassification; and that the local board had no power to reclassify him because there were no facts which would justify a change in his classification. All of the issues presented by these contentions, except the legality of the orders of the board, were submitted to the jury by the court below, and the jury found against the-appellant. The court did not err in holding that the validity of orders, which the board actually made and was authorized to make, could not be raised in a criminal proceeding. Whether the registrant had notice of the hearing granted him upon his reclassification is immaterial, because he was present at the hearing and testified in his own behalf. He also appealed from the order of reclassification, which order was affirmed by the appeal board by unanimous vote. The propriety of his reclassification cann®t be reviewed in this proceeding, since the registrant failed'to complete his duty as a selectee by reporting to an army work camp as required by the order of the board.1

The judgment appealed from is

Affirmed.

Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Fletcher v. United States, 5 Cir., 129 F.2d 262; Biron v. Collins, 5 Cir., 145 F.2d 758; Goodrich v. United States, 5 Cir., 146 F.2d 265; United States v. Estep, 3 Cir., 150 F.2d 768.