253 F. Supp. 409 | E.D.N.Y | 1966
As a result of having failed to report for civilian work in lieu of military service, the defendant John Nelson Hogans, a Jehovah Witness, was indicted for violation of 50 U.S.C.A. (App.) §§ 456(j)
After receiving all this information the Local Board on February 18, 1964 classified the defendant as 1-0 (conscientious objector) and on February 19, 1964 mailed him a notice to this effect. Although this notice (SSS Form No. 110) informed the defendant of his right to appeal the
1-0 classification, he did not choose to do so. In response to a request from the Local Board, the defendant on April 4, 1964 submitted a copy of his original appointment as a Pioneer but failed to produce proof of his current status as such. On June 18, 1964 the defendant notified the Local Board that he was no longer a Pioneer and thereupon the Local Board on July 7, 1964 voted 5-0 not to re-open his classification. At the same time it informed him that he was now “subject to being processed for civilian work in lieu of military service”. At a meeting with the Local Board on November 17,
1964, the defendant stated that he would not perform such work since to do so would compromise his beliefs. On January 5, 1965 the defendant was ordered to report to his Local Board on January 18,
1965, where he would receive instructions to proceed to his assigned place of employment, the Kings Park State Hospital, Kings Park, New York. The defendant reported to the Local Board on January 18, 1965 as directed but refused to proceed to Kings Park. This indictment for violation of 50 U.S.C.A. (App.) §§ 456 (j) and 462(a) followed on April 29, 1965.
Before submitting to the jury the question of whether the defendant willfully and knowingly failed to perform this duty, the Court is faced with the question of whether the defendant’s failure to appeal his 1-0 (conscientious objector) classification precludes him from now asserting to this Court as a defense to this prosecution that there was “no basis in fact” for the Local Board’s refusal to grant him a IV-D ministerial exemption.
The record reveals that the defendant made no attempt to appeal his 1-0 classification within the 10-day
In passing, it is proper to add that in the Court’s opinion the defendant failed to sustain before the Local Board the burden of proving that he was entitled to the ministerial exemption.
The case will therefore proceed to trial for the purpose of determining whether the defendant’s failure to report for civilian work as directed was willful and deliberate.
. As to the respective functions of the Court and jury in this type of ease, see Cox v. United States, 1947, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59; Elder v. United States, 9 Cir. 1953, 202 E.2d 465, cert. denied, 345 U.S. 999, 73 S.Ct. 1143, 97 L.Ed. 1405; United States v. Rumsa, 7 Cir. 1954, 212 F.2d 927, cert. denied, 348 U.S. 838, 75 S.Ct. 36. 99 L.Ed. 661; Tamblyn v. United States, 5 Cir. 1954, 216 F.2d 345, cert. denied, 348 U.S. 950, 75 S.Ct. 437, 99 L.Ed. 742; United States v. Willard, N.D.Ohio 1962, 211 F.Supp. 643, aff’d, 6 Cir. 1963, 312 F.2d 605, cert. denied, 372 U.S. 960, 83 S.Ct. 1014, 10 L.Ed.2d 13; United States v. Norris, 7 Cir. 1965, 341 F.2d 527.
. This section states that “at any time prior to the date the local board mails to the registrant an Order to Report for Induction (SSS Form No. 252), the local board may permit any person described in paragraph (c) of this section [which includes the registrant] to appeal even though the period for taking an appeal has elapsed, if it is satisfied that the failure of such person to appeal within such period was due to a lack of understanding of the right to appeal or to some cause beyond the control of such person * * Although the defendant in this case received an Order to Report for Civilian Work (SSS Form No. 153) rather than an Order to Report for Induction (SSS Form No. 252), this section would still be applicable since “civilian work” is designed to be “in lieu of induction”. 32 C.F.R. § 1660.20.
. Osborn v. United States, 4 Cir. 1963, 319 F.2d 915, 916; See also, Jeffries v. United States, 10 Cir. 1948, 169 F.2d 86; Evans v. United States, 9 Cir. 1958, 252 F.2d 509; United States v. Nichols, 7 Cir. 1957, 241 F.2d 1; Badger v. United States, 9 Cir. 1963, 322 F.2d 902, cert. denied, 1964, 376 U.S. 914, 84 S.Ct. 669, 11 L.Ed.2d 610; Greiff v. United States, 9 Cir. 1965, 348 F.2d 914.
. Cf., Glover v. United States, 8 Cir. 1961, 286 F.2d 84; Donato v. United States, 9 Cir. 1962, 302 F.2d 468, cert. denied, 1963, 374 U.S. 828, 83 S.Ct. 1868, 10 L.Ed.2d 1052.
. See, Dickinson v. United States, 1953, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132.
. See also, United States v. Sturgis, 3 Cir. 1965, 342 F.2d 328; United States v. Koch, D.Neb.1954, 119 F.Supp. 650; United States v. Kahl, E.D.Mich.1956, 141 F.Supp. 161; United States v. Kutz, E.D.Wis.1961, 199 F.Supp. 205; cf., United States v. Stewart, D.Md.1963, 213 F. Supp. 497, aff’d, 4 Cir. 1963, 322 F.2d 592; Wiggins v. United States, 5 Cir. 1958, 261 F.2d 113, cert. denied, 1959, 359 U.S. 942, 79 S.Ct. 723, 3 L.Ed.2d 676.
. United States v. Sturgis, supra, 342 F.2d p. 331.
. See, United States v. Diercka, 7 Cir. 1955, 223 F.2d 12, cert. denied, 350 U.S. 841, 76 S.Ct. 81, 100 L.Ed. 750; United states v. Kahl, supra; United States v. Kutz, supra; cf., United States v. Ransom, 7 Cir. 1955, 223 F.2d 15.