HOPPER v. UNITED STATES, 142 F.2d 181

HEALY, Circuit Judge. This appeal is from a judgment of conviction under § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 311. On an earlier hearing, 142 F.2d 167, the judgment was reversed on the ground of the insufficiency of the indictment. A rehearing was granted and the case was again argued, this time before the court sitting en 'banc. In view of the different result now reached we deem it advisable fully to recite the facts and to state our conclusions somewhat more at length, perhaps, than the gravity of the questions justifies.

Appellant is a native born citizen of the United States, and at the time of his registration under the Selective Service Act in October, 1940, he was twenty-two^ years old. He was then residing in Yavapai County, Arizona, of which Prescott is the county seat. On November 19, 1940, he filed with the Selective Service Board at Prescott his questionnaire showing the above facts and describing himself as a farm laborer and cattle raiser and as being unmarried and without dependents.

In the questionnaire he stated that he is not a minister of religion and does not customarily serve as a minister, but that he is one of Jehovah’s Witnesses and as such is entirely “neutral to the affairs of this world.” He was directed to report for physical examination, was examined, and was found fit for general service. He was thereupon, on December 7, 1940, placed in Class I-A and was so notified. A short time later, at his request, he was furnished with a conscientious objector form, which he filled out and returned to the board under date of December 31, 1940.

In this report he again described himself as one of Jehovah’s Witnesses and as neutral in mundane affairs. He did not assert that he was a minister, but claimed only exemption from service under direction of the military because conscientiously opposed by reason of his religious belief to participation in war in any form. Under date of January 20, 1941, in line with the registrant’s own report, the local board reclassified him, placing him in Class IV-E, that is to say, in the category described in § 5(

g) of the Act, 50 U.S.C.A.Appendix, § 305(g), as one assignable to work of national importance under civilian direction. Notice of this classification was mailed him at the time. In May, 1941, the National Director of the Selective Service System directed appellant’s assignment to work of national importance in the civilian camp at Glendora, California. On June 11, 1941, an order to report for such duty, entitled in the name of the President of the United States and signed by a board member, was mailed him. The date specified for his appearance was June 22, 1941, at 8:00 P. M.

Appellant, in response to the notice, went to Prescott, contacted the board on June 19, and advised its members that he wished .to appeal his classification on the ground that he was a minister, although he appears to have made no claim that his status In this respect had changed since the date of his registration. He was told, according to his own testimony, that he had waited too long and was not entitled to an appeal. Pie claimed, however, that he had not received the notice of his IV-E classification mailed him in January.

Next day, June 20, 1941, he appeared before the board and the members thereof interrogated him, apparently for the purpose of satisfying' themselves whether there was any ground for considering his claim to be a minister and to determine his good faith or the lack of it. Appellant’s statements made at that time were taken by a stenographer and the transcribed questions and answers were introduced as an exhibit upon the trial of the case, forming part of the record here.

In response to questioning by board members appellant, without further explanation, admitted having stated in his questionnaire that he was not and did not serve as a minister. While continuing to deny receipt of the notice of his IV-E classification he admitted having received all other communications directed to him by the board. He admitted that in May 1941 he had received from a Quaker organization in Washington a letter concerning his prospective service in the civilian camp, but had disregarded it.

He admitted also having been told in May by a company servant of Jehovah’s Witnesses that he might by changing his questionnaire be classified as a minister. This suggestion, too, he admitted having disregarded. From his story the board was warranted in believing not only that he was trifling with the truth when he denied knowledge of his IV-E classification, but that his present claim to exemption as a minister was a mere pretense.

On June 22, 1941, at the hour specified in the order requiring appellant to report, he presented himself to the board’s administrative officer who again instructed him that it was his duty to go to the Glendora camp. His transportation and means for obtaining meals on the journey were tendered him but he declined to accept them, stating that he was appealing his case to state and national authorities and was not going to camp.

It appears to have been his position then, as it was later at the trial, that he had the right to disobey while presently appealing from a classification made five months before at his own request. In sum, he undertook to- formulate his own rules of procedure and to be the judge of his own case.

Thereafter the board brought the matter to the attention of the United States attorney, and appellant was indicted, tried, and convicted under § 11 of the Act providing that “any person charged as herein provided with the duty of carrying out any of the provisions of this Act, or the rules or regulations made or directions.given thereunder, who shall knowingly fail or neglect to perform such duty,” shall upon conviction be punished, etc. We append the indictment in full in the footnote.

Appellant moved to quash and later moved for a directed verdict, both times on the ground of the insufficiency of the indictment and the unconsitutionality of the Selective Service Act. The record shows that but one specific ground of insufficiency was urged upon the trial court. We quote this objection on the margin in the language of appellant’s then counsel. The only specifications of insufficiency made in the brief here were (

a) that the term “his/local draft board,” as employed in the indictment, carried no legal meaning; and (

b) that the indictment was defective in that it did not state when, where, or to whom the defendant was to report. However, the accused made no demand for a bill of particulars, and it is clear that he experienced no difficulty in understanding the charge and that he suffered no prejudice. The indictment charged the crime in the language of the statute, with particulars of the direction given and disobeyed and the time and place of the disobedience. We think the essential elements of the offense are stated, if not directly, certainly by implication. In Crutchfield v.

United States, 9 Cir., 142 F.2d 170, we held good, in the absence of objection, an indictment less specific, perhaps, than the present. And in United States v. Messersmith, 138 F.2d 599, November 11, 1943, the Court of Appeals of the Seventh Circuit held sufficient an evidently similar indictment saying: “Defendant contends that the indictment is vague and uncertain. It charges that defendant was duly assigned to work of national importance under civilian direction; that the Board directed him to report for such service and that he knowingly, intentionally and willfully failed to comply.

This is a valid averment of violation of the law and fully advises defendant of the nature and character of the charge against him.” The courts are admonished by § 1025 of the Revised Statutes, 18 U.S.C.A. § 556, that “no indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.” At least since Hagner v.

United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861, the federal courts have determined the sufficiency of criminal pleadings on the basis of practical as opposed to technical considerations. As said by the court in that case, 285 U.S. at page 431, 52 S.Ct. at page 419, 76 L.Ed. 861, “the rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded.

The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, ‘and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction,’” (citing cases).

The court further observed, 285 U.S. at page 433, 52 S.Ct. at page 420, 76 L.Ed. 861, that “upon a proceeding after verdict at least, no prejudice being shown, it is enough that the necessary facts appear in any form, or by fair construction can be found within the terms of the indictment.” In the Hagner case the defendant was indicted in the District of Columbia for using the mails to defraud. The charge was that in the execution of the fraudulent scheme he had deposited certain mail matter in the United State Post Office in Pennsylvania, addressed to a person in the District of Columbia.

The indictment did not state, in conformity with the statute, that he did “knowingly cause [the letter] to be delivered by mail according to the direction thereon.” After conviction the defendant moved in arrest of judgment on the ground that while the indictment showed an offense in Pennsylvania, it failed to charge any offense within the District of Columbia.

In support of the indictment the court had recourse to the well known evidentiary presumption that a letter, placed in the post office and properly directed, was actually received by the person to whom it was addressed. “While, therefore,” said the court (285 U.S. at page 431, 52 S.Ct. at page 419, 76 L.Ed. 861), “the indictment does not in set terms allege delivery of the letter, a presumption to that effect results from the facts which are alleged.” In holding the indictment sufficient, the court cited § 1025 of the Revised Statutes, heretofore quoted.

Many holdings of a cognate character, adhering to the mandate of the quoted statute, are cited by the court in the Hagner opinion, among these being Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; Olsen v. United States, 2 Cir., 287 F. 85; Cohen v. United States, 6 Cir., 294 F. 488; Gay v. United States, 5 Cir., 12 F.2d 433; Musey v. United States, 5 Cir., 37 F.2d 673; Phipps v. United States, 4 Cir., 251 F. 879; Stephens v. United States, 9 Cir., 261 F. 590; Grandi v. United States, 6 Cir., 262 F. 123. As recently as the present year the Court of Appeals of the Fourth Circuit in Nye v.

United States, 137 F.2d 73, speaking through Judge Parker, has reviewed the rule of the Hagner case and its own earlier decision of similar import in Martin v. United States, 4 Cir., 299 F. 287.

Said Judge Parker in the Nye opinion (137 F.2d at page 76): “Following the decision in the Martin case we have consistently followed the rule there laid down, sustaining under a variety of circumstances indictments drawn in general terms where they set forth the ingredients of the offense as defined by statute with sufficient definiteness and certainty to apprise the defendant of the crime charged and to protect him against further prosecution for the same offense.”, (citing cases). Another forceful recognition of the modern rule is found in an opinion of Judge Learned Hand in United States v.

Polakoff, 2 Cir., 112 F.2d 888, 134 A.L.R. 607, a prosecution involving a charge of conspiracy to obstruct justice. Said Judge Hand (112 F.2d at page 890, 134 A.L.R. 607): “The indictment merely alleged that the accused conspired ‘to influence and impede the official actions of officers in and of the United States District Court * * * in order that said Sidney Kafton would receive a sentence of not more than one year and one day’.

The challenge is that it should have specified who were the ‘officers’ that were to be so ‘impeded.’ We do not see why, if the accused were really in ignorance of this detail, they could not have been fully protected by a bill of particulars. Decisions such as Heaton v. United States, 2 Cir., 280 F. 697, and Kellerman v. United States, 3 Cir., 295 F. 796, are of doubtful service today, when objections which do not go to the substance of a fair trial no longer get much countenance. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; Berger v.

United States, 295 U.S. 78, 84, 55 S.Ct. 629, 79 L.Ed. 1314; Crapo v. United States, 10 Cir., 100 F.2d 996, 1000.” This court, too, has more than once announced the principle stated in the foregoing authorities, and has adhered to the command of the quoted statute. Woolley v. United States, 9 Cir., 97 F.2d 258, 261; Zuziak v. United States, 9 Cir., 119 F.2d 140, 141. Cf. Ackerschott v. United States, 9 Cir., 139 F.2d 114, decided Nov. 11, 1943. We hold that the indictment is sufficient and that the commission of the offense was amply established. A few points remain to be noticed.

Appellant attacks the Selective Service Act as unconstitutional on the ground that it prohibits the free exercise of religion, deprives appellant of liberty and property without due process, and condemns him to involuntary servitude not as punishment for crime. Also that the Act delegates legislative powers. These propositions, in one guise or another, have been advanced again and again, both in this and in the first World War, and have uniformly met with rejection. Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918 C, 361, Ann.Cas.1918B, 856; Goldman v.

United States, 245 U.S. 474, 38 S.Ct. 166, 62 L.Ed. 410; O’Connell v. United States, 253 U.S. 142, 40 S.Ct. 444, 64 L.Ed. 827; United States v. Stephens, D.C., 245 F. 956; United States v. Herling, 2 Cir., 120 F.2d 236. Congress and the selective service authorities alike have been considerate in their treatment of those possessing scruples against participation in war. Surely it is not expecting too much to require of them that they do civilian work of national importance at a time when their brothers, under the same compulsion, are giving their lives for them and for the Nation.

As we have seen, appellant was accorded due process of law. The board did not act arbitrarily, either in classifying him or in directing him to report for service in line with his classification. Appellant assigns as error numerous rulings on the admission of evidence. His objections were to exhibits comprising his signed questionnaire, his conscientious objector report, and other documents relating to his registration and sufficiently identified as official records of the selective service board. There was no error in admitting these exhibits. The judgment is affirmed.

This order recited that he had been, classified as a conscientious objector, Class IV-E. Under the then regulations an appeal from a classification was required to be taken within ten days.

Regulation 601.158, Code of Federal Regulations [1940 Supplement, p. 4415], provides in part as follows: “The mailing of any order, notice, or blank form by the local board to a registrant at the address last reported by him to the local board shall constitute notice to Mm of the contents of the communication whether he actually receives it or not.” There is no reason for cataloging this inquiry as a proceeding for reclassification under the regulations, and it is abundantly clear that the board did not so regard it.

Appellant has at no time contended that the hearing effected a vacation or suspension of Ms existing classification. It was the position of his counsel on the trial that the board arbitrarily denied his claim to be classed as a minister. “The Grand Jurors of the United States, impaneled, sworn, and charged at the term aforesaid, of the Court aforesaid, on their oath present, that Robert Earl Hopper, having theretofore registered under the Selective Training and Service Act of 1940, on or about the 22nd day of June, A.

D. 1941, and within the said District of Arizona, did knowingly, wilfully, unlawfully and feloniously fail and neglect to perform the duty required of him under and in the execution of said Act, and the rules and regulations made pursuant thereto, that is to say, that the said defendant, Robert Earl Hopper, having been theretofore classified by his local draft board at Prescott, Arizona, as a conscientious objector, and found fit for general service, did then and there, knowingly, wilfully, unlawfully and feloniously fail and 'neglect to report as a conscientious objector for civilian work of national importance when notified so to do by his local draft board; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.” On the motion for a directed verdict, counsel stated: “Now, on the matter of the first motion, that the indictment fails to state a public offense or crime as set out in the motion to quash, but the motion to quash is not reviewable, so I make the same argument at the time that was made; that is, that the indictment is so indefinite, that it does not charge a public offense; that it does not say to whom he was required to report, nor by whom he was ordered to report and all of the elements of a faulty indictment are present in this indictment.” The bill of exceptions does not contain all the evidence, but we can in a proper case, under Rule 9 of the Criminal Appeals Rules, 18 U.S.C.A. following

section 688, order correction of the bill. Ray v. United States, 301 U.S. 158, 57 S.Ct. 700, 81 L.Ed. 976. For that reason we have examined the reporter’s transcript of the evidence and the exhibits, which were filed in this court, to ascertain whether a correction of the bill would aid appellant. From such examination it is apparent that it would avail the appellant nothing to have the bill of exceptions amended to include the evidence shown in the transcript.

This method of dealing with the problem has been followed for the reason that the parties have referred to the reporter’s transcript and in part based their arguments upon it. However, we desire it to be understood that this procedure is not to be taken as establishing a precedent for the use of such a transcript.