*1
411
was pulling
upon which
in all
judgment
of their
and it
evidence
un-
technicality
decided that
there
a
The court
would be
of
entered.
refinement
by-
judgment supported
41(b)
say
Rule
such evidence and all
der
reasonable
mer-
adjudication upon the
findings was an
inferences to be
be
drawn therefrom must
its,
for dis-
moved
light
inasmuch as defendants
viewed in the
most favorable to the
upon
under
appellants
and if
missal
there be
substantial
law, plaintiff
claim,
had shown no
supporting
their
court
facts
question
appellees
on review
put
proof.
relief and that the
must
The sen-
supported
findings were
whether
sible course
be followed
the trial
were,
if
they
if,
jury
cases
a
court without
is that
clear-
aside unless
plaintiff’s proof,
could not set them
court
at the close of
case
ly
preponderance
erroneous.
has
been made out
a
dismissed,
the action should be
Young v.
In the case of
question
which makes the
of fact.
one
825,
Cir.,
823,
by the
trial
F.2d
a
jury,
to re
the action was
judgment
court without
is reversed
the case
Insur
upon
policy of
Risk
War
cover
with
remanded
directions to the District
plaintiff’s
conclusion of
At
ance.
to state
findings
Court
its
of fact and con-
dis
for a
proof,
required
the United States moved
of law
52(a).
clusions
Rule
evi
ground of insufficient
appeal
on the
If
missal
judgment
taken from the
urged
appeal
on
rendered,
dence.
possible
thereafter
it will be
question
whether
determined was
present
make use
record
there
take
sufficient evidence to
a supplement
there
filed with it
containing the
jury.
jury,
had there
been
proceedings
herein ordered.
court
“The
is in error
said:
regard
judgment
for the
in that
pro
court was on the merits. The rules so
52(a)
Rule
of the Federal Rules
vide.
Procedure,
following
section
U.S.C.A.
requires
findings
723(c),
there shall be
all ac
‘in
of fact
conclusions
jury.’”
tried
the facts without a
tions
court
it
not disturb
decided
could
v.
SPRINGER
UNITED STATES.
findings of
of the trial
unless
fact
No. 10753.
they
clearly
were
erroneous.
Appeals,
Ninth
Court
Circuit.
Equity
Rule
Since
70%
52(a)
21,
of Rule
the latter
progenitor
1945.
March
mandatory
advisedly
lan
and its
made
specially
facts
guage “shall find the
law”
separately
conclusions of
its
state
every action
applicable makes the rule
jury and
facts
without
fried
facts
decided
where a case is
41(b)
to dismiss under
motion
52(a).
In
comply
Rule
States, 304 U.S.
Circuit v. United
terstate
1146;
Mayo
82 L.Ed.
55, 58 S.Ct.
Company,
Canning
Highlands
Lakeland
60 S.Ct.
L.Ed.
supererogation
discuss
would be
52(a)
purpose
that sub-
of Rule
since
reported
fully
ject is
covered
cases
Cyclopedia
Pro-
books.
of Federal
in text
5078;
(2nd Ed.),
Vol.
Sec.
cedure
Corporation
Oil
Transfer
Matton
Dynamic, Cir.,
they their advanced whole cause *2 Booth, Cal., Angeles, Bates of Los
appellant. Carr, Atty., Charles H. U. S. and James Lucas, M. Carter and V. P. Asst. U. S. Attys,, Cal., Angeles, all of Los appel- lee. WILBUR, DENMAN, Before and STE- PHENS, Judges. Circuit WILBUR, Judge. viola- was convicted of a provisions Selective
tion of Training and Service Act of U.S. seq., C.A.Appendix 301 et in that he §§ wilfully knowingly and 'failed to to do. induction when ordered so This is appeal judgment from the and sentence. assignments Neither of error reference the exclusion and intro assignments duction relation error with to instructions to the and, therefore, jury, conform to our rules need be considered. also as the denial signs as error of his motion to Talbert, Zweigart. gen- Dorothy ar- dismiss the denial of motion purpose eral for which these witnesses judgment. rest of prove good conduct on were the was to Before further consideration part When general case a statement facts *3 stated that he wanted to show that he arose, points manner in the which the breaker, something “hadn’t been a should be made. my favor”, said, pre- to the court “You are argued the Defendant and also testified crimes, sumed to be all innocent of includ- appears person jury. case in to the It ing you charg- the crime with which his contention is that he therefrom that a ;ed” that evidence of character was not gospel, minister of the member Je- admissible. Witnesses; received no- hovah’s he Dorothy Zweigart While the witness was tice to for December induction on stand, court stated to de- the the the 23, 1943, being after of his advised classi- put right fendant had a into is- that he to A-l, fication as and that he re- failed to reputation community in sue his the in port induction, for not for the reason that government which lived and that he the submitting he had intention of to the had a to rebut that but that jurisdiction military authorities but every person presumed good to have might he felt that he secure from character. wanted defendant stated he still higher authority a reversal of the decision bring it out and the court stated belonged that he in Class A-l. he Whereupon, proper could if he laid the foundation. arraigned appellant was When the suggestion at the of the Unit- repre right to be of his he was informed attorney ed States the examined the counsel; replied he did by he sented witness with a view to ascertaining her counsel; nevertheless the court not desire familiarity reputation with the ap- attorneys competent rep appointed two pellant. Upon questioning this witness the he refused their assistance. him but resent court concluded that compe- she was not April Appellant arraigned was testify tent to general reputation April for for trial The case was set the defendant for truth, honesty, and in- 19-14, request the notwithstanding the tegrity, and objection sustained the appellant delay for a of a “because week United attorney. States exception No was information to be received from the by appellant. taken the Society Tract Bible & which Watchtower Sargent Melvin P. was called way, is on its information from permitted lie defendant. wras ob without my in armed brother services.” testify reputa jection general that the give the The failure to additional time truth, honesty tion of the presented prepare ground for trial is as community in integrity in he which exception but no reversal was reserved good. lived was offered an af ruling, the time of the at was there brother, fidavit from his who was in the any application for a continuance at the armed services of the which application time of for a trial. week’s objected application was An to. for a supported delay was not affidavits nor continuance of the trial to secure his tes by any statement of facts which called for timony appears was also denied. delay. There was in refusing no error testify desired his brother to delay in the trial. good Therefore, to his as testimony character. merely cumulative and there showing introduced Evidence was ground was no for continuance of the trial. defendant that on June IV, Russell, 201 in E. testified for de- Board class Gordon by Local classified fendant, three but as he stated he did not (minister) a vote of know Dsub. 9, 1943, September reg reputation in the defendant in Later, on com- one. munity objection which he lived course, appellant was classified class ular testimony Appeal. was sustained. No ex- A, the Board sub. ception was reserved government’s At the conclusion of by appel- Newcomb was called moved dismiss the Clarence evidence, defendant reputation testify his lant to munity the com- discharge cause in which lived but proof. he This motion ground of failure of sustained, having Thereupon the witness stated properly the de- denied. reputation did not his know the com- offered as witnesses S. Kiel- fendant Irna munity hofer, Anderson, in which lived. Phillips, Lois Mabel Jack 41á defendant, minister, occupation. tion Springer, a brother of nor his John J. reputation was court him willing stated to have he was testified defendant’s argue argued very good. case if he same he must conform reputa- testified that Forsberg Oscar Notwithstanding people. rules other truth, honesty tion of the defendant for appellant’s argument this admonition the in which community in the integrity, mainly attempt consisted have the he works is excellent. jury disregard by the lo- the classification juncture appellant asked At cal board disregard the order of attorney represent appoint an court to induction on draft permitted trial. him prin- board violated “three basic American *4 in the de- Bates Booth to be associated ciples,” as “They follows: violated des- defendant fense of defendant and the principle worship the of em- freedom of attorney. There- ignated Mr. Booth as his Constitution, in they bodied the violated a appellant the witness stand the took passed by Congress, they law and violated in his own He testified he is behalf. supreme by God’s forcing one of His representing minister ordained Watch- * the * * servants out of Flis service. In Society had oc- and Tract Bible &t tower great responsibility, your a hands lies Fie years. stat- for 12 position cupied such you great uphold su- the three whether will classified as Appeal Board him that the ed preme principles or nefarious act. one report for induc- that did not A-l and * * * prevent order to these draft In asked Defendant was tion as ordered. I scrapping boards from our Constitution in examination, intent was “What direct your you guil- bring that in a verdict not ask of you failed to at time that mind the ty.” Thereupon the Assistant ? n ”The court sus- draft board report to the attorney jury, the com- States addressed objection question. The to the tained an menting upon appellant the claims “Did thereupon asked witness: the presented argument; was in- as in his regard- wilfully report, you to intend not objection terrupted by appellant’s the at- of * * * were? your'reasons of wh‘at less torney precluded that been defendant had Army for induction.” the report to I mean points arguing being that were from the be- that I didn’t do “Well witness: The developed by attorney the United States them, I at time and that to I wrote cause attorney and the United States should C., Wáshington, D. to a letter wrote also in order appellant be restricted also because had the stay to induc- hear from them to called The court at- been so restricted. it.” properly they hear could until tion appellant had tention to the fact that the limiting the ar- disregarded his admonition he re- further The witness testified attorney gument and .the United States report for in- original order the ceived right .appellant’s 1943; claimed the to answer a.m. on December at 7 duction argument of argument. the United person, but in- not in he did attorney in there States was effect that draft board to a wrote letter stead delay non-combatant which could were services held that letters writ- it. The court by a objector rendered conscientious be characterized no- by after he had received his ten him appellant the conduct the of be ad- for induction were too late tice “ follows: T don’t want as I am serve. in mitted evidence. objector a not conscientious war. I in- was witness character additional An war all right.’ say think Those exhibits Thereupon, appel- troduced objec- conscientious his he withdraws dismiss the case moved to rested lant the right, other fel- War is all tion. —for sus- did not the brother, for his it is all It is low. all proof element as to the burden of the tain defendant, anybody but the right for Motion was intent. denied. criminal will, his to substitute his the court de- he wants law, waiv and, United States remark- as has sire, Counsel remark, the defendant argument and if all of us opening I now would ed, as ed permission argue country that, the court’s would the be?” requested do where responsive granted appel- personally. argument The court
his
justified
that he
argument
warned
witness
request but
and was
his
lant’s
argue
entering
classification
a
argu-
field of
could
conduct
good
bad,
ruling.
whether
or
nor ar
foreclosed
court’s
ment
board
draft
gue
beliefs,
regard.
error in
no
religious
designa-
nor his
There was
filing
receipt
there-
pint
blood,
made
nate
complaint
only
the for with
Officer.”
the Probation
instructions to
to the court’s
given to
that no instruction
jury is
applied for
defendant,
had
who
effect of
jury with reference
objected
presentence investigation, neither
See
character.
good
testimony as to his
probation
excepted to
to the terms of
Dis
of the U.S.C.C.A.
decision
recent
implies a
order
conduct
made. This
S.,
F.
U.
Columbia,
Colbert
trict
However, even
consent
to the order.
ap
was made
request
No
2d
necessary
exception was
no
upon that sub
pellant
instruction
(see
secure
review of
order
Weems
think
we
under
circumstances
ject
v. United
S.Ct.
none
705),
we
L.Ed.
19 Ann.Cas.
it has been
irrelevant.1 It
true
add that
if the court was
as-
error
with instructions
held
connection
suming
had consented to the
duty
jury that
it
probation,
appears
terms
now
ab
issues involved even
case,
cover the
apply
may
for modifi-
require
request.
does not
sence
This
order,
(United
cation of
States
character,
good
where Lindh,
;
instructions
Cir.,
332)
may
148 F.2d
or he
*5
and the defend
irrelevant
comply
or
fail
refuse to
the terms of
deliberately
that
ant admits
he
refused
order,
probation
thus,
and
court so
that which
law
him do.
do
subject
already
himself to the
im-
sentence
posed
suspended.
but
The conditions of
suggested
No reason is
we
none
and
see
probation
punitive
not
character and
concluding
of good
evidence
char-
that
question
of whether or not the terms
truth,
integrity
and
honesty
acter for
would
are cruel and unusual and
violative
thus
support
tend
a claim of innocence where
Constitution
United States
a deliberate
the defendant admits
refusal
not
does
arise
the reason that the Con-
board, basing
induction
obey an order of the
applies only
punishment.
stitution
grounds.
refusal
conscientious
probation
These conditions of
are intended
imposing sentence
court, after
trial
to be an
punishment
amelioration of the
$1,000,
entered
years
a fine
and
of three
prescribed by
given
law for the
offense.
suspending
sen-
probation
order
an
Affirmed.
probation
tence,
placing
years
shall
“provided
four
DENMAN and STEPHENS, Circuit
em-
continue
be
secure and
forthwith
Judges (concurring).
in one of the
as a
attendant
ployed
ward
opinion
We concur
Judge
area,
hospitals in
this
three veterans’
WILBUR,
paragraph
save as to the last
employment is not avail-
event that
with respect
thereof. We hold
him,
Officer
di-
Probation
able to
provision regarding
Red
Blood
Cross
report
court.”
to this
It
rected
Bank, as follows:
“as
condition of this
further ordered that
consider,
We do not
pay
we make
fine
probation,
the defendant
said
regarding,
power
no
month,
intimation
per
rate of
at the
$50.00
pro
to review
terms of a
Red Cross
Bank
Blood
bationary
days
any ruling
order. We
thirty (30)
next
withhold
and do-
within
light
experience.
many
in the
of reason and
1
It
doctrine of
established
States,
7,
See Wolfle v. United
291
a criminal
U.S.
states
12,
279,
617,
reputation
54 S.Ct.
78 L.Ed.
of de-
devel
the character
oped
States,
from Funk v. United
is not
unless it
290
admissible
be
U.
fendant
371, 374-381,
proba-
212,
S.
S.Ct.
makes it
78 L.Ed.
of character which
a trait
369,
Dong
improbable
UNITED STATES al. AMERICA et No. Appeals, Second Circuit. Court of 12, 1945. March