(dissenting):
In my judgment there was adequate basis for the decision of the Local Board. It was that the registrant had *833not proved his claim for classification as a conscientious objector. Concededly, it was his burden; he simply did not carry it.
There was, too, an altogether adequate finding of this deficiency; it is the plain and fair implication of the Board’s conclusion. A determination arising from absence of proof is as much a finding of fact as a positive one declaring the existence of proof. Here a negative finding was the “basis in fact for the refusal to accord defendant conscientious objector status”, to quote the court’s clear putting of the issue. I cannot understand how, then, it can be said there is no finding to support the Board’s determination.
That the Board could well have acted on a disbelief of the registrant is acknowledged by the majority. Nevertheless it overrules the Board because it did not put into the record a prim declaration of doubt. A more emphatic pronouncement and demonstration of unbelief than the refusal of the registrant’s request is hardly conceivable, for his claim rested on his oath. The Board’s rejection of his assertion utterly discredited the claimant’s testimony. Surely, so obvious a meaning of Board action does not have to be spelled out to be recognized. Words saying formalistically that the Board doubted the registrant would have been a superfluity. To rely on the omission is to subordinate substance to style to overthrow the Board.
No matter how positive or unequivocal the evidence of a witness reads in print, the severest analysis for assaying his truthfulness is in observing him — -his manner of speaking, his attitude, one of frankness or evasion, responsiveness or reluctance, his grasp of the inquiries, and an understanding to distinguish between patriotic and conscience obligations. The cold transcript on which we appraise him is not so faithful in reflection of reality as the picture the witness exhibits in himself to the Board. Nothing conveys sincerity or exposes insincerity like the personal appearance. I do not feel capable of a better judgment second-hand.
It is suggested that because the Board could have founded its decision on arbitrariness, misconstruction of law or some other ground than disbelief, it should be required to state the reasons for its determination. Any and all of these elements, if we are to indulge in speculation, could be just as readily hidden in a formal statement of distrust of the registrant. Indeed, they could be in any conclusion of the Board, but surely it does not have to disavow explicitly the entry into its judgment of each of these or other unacceptable factors. But suppose it did make such disclaimers, could not these protestations be subject to the same speculation? Refusal of credence to the registrant’s testimony is so squarely demonstrated here that I see no reason to engage in hypotheses to the contrary.
The majority opinion puts the burden upon the Boárd to acquit itself of these unfair possibilities. Certainly, a presumption of fair dealing is accorded by law to the Board members. Congress has reposed in them the power and responsibility of decision of the facts — as neighbors or lay citizens — and so expressed faith that they would not vote capriciously in this resolution. Confidence of this kind is not uncommon in our governmental system. Comparably, when credibility of a defendant is the sole determinant in a criminal case, and determinable alone from observation of him on the witness stand, the jury or the judge may find guilt without appending the reasons for rejecting his testimony. I would extend this confidence to the Board until it is overridden by proof. None is proffered here.
I did not understand counsel for the United States to concede there was no basis for the Board’s denial of exemption. True, in response to questions from the bench as to the existence in the record of evidence upholding the Board, he answered there was none. He meant there was no affirmative proof denying *834the claim or refuting it. Absence of proof was the determinant, and so counsel’s answer did not acknowledge infirmity in the Board’s action.
I would affirm the order of the District Court.