136 F.2d 567 | 5th Cir. | 1943
Convicted of the offense of having knowingly hindered and interfered by, force and violence with the administration of the Selective Training and Service Act' of 1940,
“ * * * Amy person or persons who shall knowingly hinder or interfere in any way by force or violence with the administration of this Act or the rules or regulations made pursuant thereto”. 50 U.S.C.A. Appendix § 311.
It charged:
“That Nubie Glenn Bagley, hereinafter called defendant * * * being a person subject to all the provisions of the Selective Training and Service Act of 1940, as amended, and the rules and regulations made pursuant thereto, did on or about June 6, 1942, knowingly,-unlawfully and feloniously hinder and interfere by force and violence with the administration of this Act and the rules and regulations made pursuant thereto, and did then and there unlawfully, knowingly and willfully make to and in the presence of R. O. Martin, W. Ed. Eubanks and J. E. Hansard, in said Division and District aforesaid, and within the jurisdiction of said Court, a threat to inflict bodily harm upon the members of Local Board No. One, Forsyth County, State of Georgia, and did then and there say to and in the presence of the said R. C. Martin, W. Ed. Eubanks and J. E. Hansard in sub-stance and to the effect as follows, to-wit:
“That he, the said Nubie Glenn Bagley, was not going into the United States Army; that the Selective Service Board could not make him go; that he would stretch the members of the Local Board No. One, Forsyth County, State of Georgia, out in his truck and haul them off, which said threat was communicated to Local Board No. One, Forsyth County, State of Georgia, and the Members of said Local Board, and which said threat and threats so communicated so created fear and intimidation in the minds of the Members of said Board as to hinder and interfere with the administration of the official affairs and duties of said Local Board No. One, Forsyth County, State of Georgia, and the members thereof, in the administration of the Selective Training and Service Act of 1940, as amended, and the rules and regulations made pursuant thereto”.
This was the evidence on the issue of force and violence:
Bagley, a farmer with only three years of schooling, was addicted to drinking. About June 5th or 6th, 1942, being pretty well under the influence of liquor, he came into the store of Clark Martin, a brother of Carl Martin, one of the members of the draft board, at Brandywine, Georgia, and as J. D. Hansard, the chief witness for the Government testified, the following occurred:
“He (Bagley) was sitting on a counter in the store. I heard him talking to the crowd making remarks to the crowd as a whole — he got to talking about a questionnaire he said he burned his up — he was 100% per cent for Hitler and would help him any way he could — he wasn’t going to the army — they were crazy as hell if they thought he was going to the army. He would haul them off in the back of his pickup — he had mentioned nobody else’s name before I heard him make that conversation, only Hitler— when we was all sitting around there he came in the store — somebody had a questionnaire — one of those occupational I think it was — he just come in, set down and got to talking about the questionnaires, some of them did, I don’t remember who — he said he burned his up — he would help old Hitler every way he could —they was crazy as hell if they thought they was going to take him to the army—
On cross-examination, he testified Bagley appeared to be drinking. “I couldn’t say whether he was very drunk, I don’t know. He never did use any board member’s name. He did use the word Board ■ — he said that Board was as crazy as hell if they thought they was going to get him in the army. He didn’t say what Board— just said Board — didn’t say anything about any particular board or .name anybody. There were no members of Forsyth County Draft Board present. * * * He didn’t have any gun or anything of the kind — he did not use any force toward anybody that was there. lie did not show any weapon of any kind. lie made no threats to hit any individual or to shoot any individual or do anything to any individual. So far as I saw he had no weapon or anything he could have hurt anybody with. * * * Bagley talked in a pretty mild language. * * * He did not appear to be mad, just kind of talking you know, just like carrying on a conversation. I did not hear anybody chide him — I don’t think any of them said anything back to him. * * * ”
J. E. Hansard testified about to the same effect and said: “I believe he said he was 100% for Hitler because Hitler was right and if he had to go to the Army he would do everything he could for him — would be glad to enlist any time to get to fight against England. * * * After Bagley left, I went by Carl Martin’s and told him what Bagley said. We were standing talking and Bagley drove up and stopped. Of course, he did not say anything against the Board to Carl Martin, but he came over with an oath, I believe he did and told him that he burned his occupational Questionnaire. * * * lie come off like he did down at the store about he was for Ilitler — if he had to go to the army he would fight against it. He didn’t tell him they couldn’t send him, nothing like he did down at the store. He left out the threats.”
On cross-examination, he testified: “Ho (Bagley) didn’t say he was going to haul them off or would haul them — just said he had room to. — I did not see any weapon about him of any kind — he wasn’t violent, he was just talking, was just in a big way of talking. ® * * I never heard anything against any of his family. It is as nice a family as ever lived in this country, but Glenn got started out drinking. I never heard nothing out of him except when he was drinking.”
Webb testified that he was at the store and heard Bagley say that if they sent him to the army or fixed to, * ® * why he could put them in his pick-up and haul them off.
Eubanks testified that he was at the store and heard Bagley say that “if the board was smart if they sent him to the army and if they didn’t send him they didn’t have any sense at all and he would straighten them out in the back end of his pick-up and haul them away. He didn’t make any statement about his questionnaire. He was drinking, I think. * * ® He acted like people that was drinking. I could tell by the way he talked and the "way he done.”
The Board members testified that Carl Martin told them about the conversation at the store and that they decided to have the authorities look into it. Carl Martin, a board member to whom the story was carried and who told the board, testified “After these threats were communicated to me, Mr. Bagley come to see me and stopped Hiero a little while. lie didn’t stay there very long. He said something to me in regard to the cotton, I don’t remember just what — I had been connected with Triple A but was not at that time. When ho got through talking about the Triple A, he said he was 100% for Ilitler and he would be glad to volunteer in the German army to whip England. * * He came to see me and talked to me again two or three days after that. lie just repeated about the conversation he liad previously had about being 100% for Ilitler and volunteering in the German Army to whip England. He also said: T am sorry I acted the way I did down at the store the other
Words and Phrases, Yol. 17, Perm. Ed., p. 237: In no instance of their use in the statutes have mere words unaccompanied by acts or conduct showing intent and ability to exercise and apply physical power been held to constitute force and violence. Cf. McGeorge v. Commonwealth, 237 Ky. 358, 35 S.W.2d 530, 531.
Cf. Lewin v. United States, 1 Cir., 62 F.2d 619; An indictment for forcibly interfering with members of the coast guard; Colyer v. Skeffington, D.C., 265 F. 17, Strecker v. Kesler, 5 Cir., 95 F.2d 976 and Kesler v. Strecker, 307 U.S. 22, 59 S.Ct. 102, 83 L.Ed. 371, dealing with deportation, under the Act of Oct. 16, 1918, as amended by the Act of .Tune 5, 1920, 8 U.S.C.A. § 137, of aliens who seek the overthrow of the government by force and violence.