(again dissenting).
This case suffers from the predilections of all its judges. The district judge convicted Fogel and sentenced him to the penitentiary; he is for upholding his previous decisions. In this court the same judges are sitting who heard the former appeal, and the same two again affirm the conviction. I am more convinced than ever, not that “to grant a new trial is to invite mockery of justice”, but that justice is mocked by not granting one.
The indictment, filed January 22, 1947, charges a failure to register “on or about the sixteenth day of February, 1942’.’. That is the date on which by Presidential proclamation persons between 18 and 45’ years of age were required to register. Fogel was tried for failing to register on that date, being under 45. The whole controversy in the trial was whether he was under 45, or over 45. The judge in finding him guilty said: “In this case, as to the matter of age, the defendant on oath fixes *766his age (in applying for citizenship) as of July 10, 1898. In the light of the record we are of opinion that this should be accepted as true. * * * We think that it correctly fixes the age of defendant”. He thereupon found him guilty. In overruling the present motion for new trial for newly discovered evidence the final conclusion in his opinion is: “But if we were to concede that it was newly discovered evidence and that his birth date was back in 1894 instead of 1898, under the law as pointed out by the district attorney it would have been his duty to have registered (meaning on April 27, 1942, when by a second proclamation all under 65 were required to register) and we believe he could be put on trial again, if we granted a new trial, under the indictment as it now exists. And that being the case, we see no reason for setting aside the judgment and granting a new trial”. The present majority opinion also relies on the fact that Fogel, being under 65, did not register on April 27, 1942. But he was not indicted nor tried for failing to register on that date or on that basis, and on review by the district judge, and in this court, the charge cannot be thus shifted to sustain the conviction. That process was held not to be due process in the recent case of Cole v. State of Arkansas, 68 S.Ct. 514.
The other reasons given by the district judge equally show an abuse of discretion. He dwells on Fogel’s confusion about his age, in that while in 1917 he registered (as now for the first time appears) for World War I he put his birth year as 1894, yet twenty years later in applying for insurance policies he made it July 10, 1898, and finally in 1946 in applying for citizenship he put the same date, and since his trial in this case he plead guilty to false swearing in connection with that application and was put on probation in view of this prison sentence. “Now he seeks a new trial the effect of- which would be to relieve him of serving any prison term in either case.” Fogel’s confusion about his age, and his misstatements about it merely go to show that his “admissions” on which he was convicted are quite unreliable, and insufficient to sustain the Government’s burden of showing he was less than 45 years old beyond a reasonable doubt. The Government has no other evidence at all about his age. And to refuse a new trial in order the more certainly to keep the defendant in the penitentiary on some charge is surely on its face a gross abuse of discretion.
As to the immigration record, the judge said: “Now when this man came over here he was a bright young fellow twenty years of age. He showed good judgment in coming right straight to Texas.” This shows that the judge was convinced that the immigration record which fixed the age as then 20, and not 16, referred to Fogel, as the older brother, Josef Fogel, and two witnesses from Philadelphia who saw the immigrant on his arrival swear. The name in the record is Schlokne Vogel. The. testimony is, and it is generally known, that Vogel is a German name pronounced the same as English Fogel; they are the same name, completely idem sonans. Schloime is Yiddish, the accent is on the i, pronounced as English ee, and the final e is pronounced as a syllable. The English pronounciation is “Schlema”, as the stenographer phonetically spelled it in his report of Josef’s testimony in the original trial, when he said the defendant came to him in Philadelphia under that name in June, 1913, aged 20 years. There is a discrepancy in height, which was probably guessed at, and in hair and eye color perhaps seen by the inspector in a bad light. If it does not refer to this immigrant, as three unimpeached witnesses testify, to whom does it refer? It exactly supports in name, date of arrival, and age what Josef testified in the trial before he had seen the record, as does the registration record for World War I of Sam Fogel, which gives in 1917 the age as 24. In my former dissent I thought Josef’s unimpeached testimony ought to have prevailed. Thus supported I think it would prevail before an impartial jury.
As to the record evidence being newly discovered, of course Josef and Sam knew that Sam came to Philadelphia in 1913, and there ought to be a record of his entry. The Bureau of Immigration and Natural*767ization was asked for it and reported that none could be found. It has since been found. How can the Government, which had the record all the while and said it did not exist, assert a want of diligence in producing it? It became available to Fogel only since the trial, and is newly discovered within the law of new trials. It strongly supports the testimony of Josef, the only living witness who knows the fact of Sam’s age, and would likely produce a different result on another trial. Sam may deserve to be in the penitentiary, but he ought to be sent there according to law, if at all. I repeat my dissent.