OPINION OP THE COURT
William Alan Townsend appeals a conviction by a jury in the United States District Court for willful failure to submit to induction in violation of 50 U.S.C. App. § 462. The pivotal question in this case is whether the trial judge erred by refusing to recuse himself from presiding over the apрellant’s trial. Arguments which raise other questions are *1073 made on appeal. We find a discussion of them unnecessary, hоwever, since we reverse on the recusal issue.
On May 13, 1970, the appellant was classified I-A by his local draft board in Bristol, Pennsylvania. On July 24, 1970, he was mailed notice to report for induction on August 19, 1970. Townsend appeared at the induction center as ordered but did not step forward for induction. Instead, he submitted to the officer in charge a statement which indicated for the first time that he was a conscientious objector.
As the trial began, the appellant presented аn affidavit to disqualify the trial judge under. 28 U.S.C. § 144 on the basis of statements allegedly made by the judge five days before at a pretriаl conference. The following portions of the affidavit attributed to the judge remarks concerning the sentencing оf selective service violators.
“The judge stated that the defendant’s sentence would be thirty months in prison irrespeсtive of whether a plea would be entered or defendant would be found guilty after trial.
“The judge stated that he sentences all selective service violators to thirty months in prison if they are ‘good people.’
“The judge stated that hе felt a duty to pressure conscientious objectors into submitting to induction and that a uniform thirty months sentence was the best way to effectuate that policy.”
The district judge held the affidavit to be insufficient, refused to disqualify himself, and presided over the trial.
28 U.S.C. § 144 provides:
“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any аdverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such procеeding.
“The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by а certificate of counsel of record stating that it is made in good faith.”
The mere filing of an affidavit under this section dоes not automatically disqualify a judge. Behr v. Mine Safety Appliances Co.,
It is the duty of the judge against whom a section 144 affidavit is filed to pass upon the legal sufficiency of the facts alleged. Simmons v. United States,
To warrant disqualification the affidavit “must give fair support to the charge of a bent of mind that may pre
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vent or impede impartiality of judgment.” Berger, supra,
In view of the congressional policy adopted in the following language of the Selective Service Act of 1967 (50 U.S.C. § 456 (j)), thе last paragraph of the above-mentioned affidavit gives “fair support to the charge of a bent of mind that mаy prevent or impede impartiality of judgment” in this case involving a conscientious objector:
“Nothing contained in this titlе * * * shall be construed to require any person to be subject to combatant training and service in the armed forcеs of the United States who, by reason of religious training and belief, is conscientiously opposed to participаtion in war in any form. * * * Any person claiming exemption from combatant training and service because of such consсientious objections whose claim is sustained by the local board shall, * * * if he is found to be conscientiously opposed to participation in * * * noncombatant service, in lieu of such induction, be ordered by his local board, subjeсt to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in section 4(b) * * * such civilian work contributing to the maintenance of the national health, safety, or interest as thе local board pursuant to Presidential regulations may deem appropriate * *
Placing pressure on cоnscientious objectors “into submitting to induction” through a policy of imposing 30-month sentences indicates such a “bent of mind” in light оf the above congressional policy.
Lastly, we hold the affidavit to be timely. The appellant has shown good cause for his failure to file within the time set forth in § 144. The facts upon which the judge’s bias were predicated did not occur until five days before trial. See Willenbring v. United States,
Under these circumstances we hold that the trial judge erred in refusing to recuse himself and in presiding at the trial. The judgment of conviction will be reversed, and the cause will be remanded to the district court for further proceedings consistent with this opinion.
Notes
. For this reason, we recognize that the able trial judge had no way tо respond to the charges in the above-mentioned affidavit and, of course, we do not assume their accurаcy except for the purposes of the application to disqualify under 28 U.S.C. § 144 due to the requirements of that statute.