PENLEY v. UNITED STATES, 145 F.2d 748

WOODBURY, Circuit Judge. This is an appeal from a judgment sentencing the defendant to a term of imprisonment after a jury had found him guilty as charged in an indictment alleging that he had violated § 11 of the Selective Training and Service Act of 1940, 54 Stat. 894, 50 U.S.C.A.Appendix, § 311, by knowingly failing to report for induction pursuant to an order of his local draft board. From the record it appears that the defendant-appellant requested classification in IV-E as a conscientious objector and that his local board so classified him.

But on appeal taken by the government appeal' agent on behalf of the government the board of appeal unanimously put him in I-A. He was duly notified of this classification and in due course he received the order to report for induction which he admittedly refused to obey. His indictment, trial, conviction and sentence followed. At the trial below the court excluded certain evidence offered by the defendant to show that the board of appeal had acted arbitrarily, capriciously and contrary to law in classifying him in I-A instead of IV-E and this, he contends, constitutes reversible error.

The case at bar differs from Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, only in that the defendant here was ordered to report for induction into the armed forces, whereas in the Falbo case the registrant was ordered to report for assignment to work of national importance. No argument is needed to show that this difference does not distinguish the instant case from the one cited. On the authority of that case, The judgment of the District Court is affirmed.