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May 2, 1947


The opinion of the court was delivered by: MCVICAR

Defendant, David Wilfred Garvin, Jr., was indicted in this Court for knowingly failing to submit to induction into the Armed Forces of the United States, October 7, 1946, as required under the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 301 et seq. To this charge he pleaded 'Not Guilty'. The jury, after trial, found him 'Guilty'. This action is now before us on a motion of defendant for judgment of acquittal in which he set forth as reasons therefor, inter alia:

 The undisputed evidence received upon the trial of this case showed that the defendant was denied a full and fair hearing before the local board and that the local board also denied him a full and fair hearing before the board of appeal and thus deprived him of his rights to procedural due process of law by withholding oral evidence from the board of appeal which had been considered by the local board in arriving at the classification in that the local board did not reduce to writing such evidence given and received orally and place a memorandum thereof in the draft board files as required by Sections 615.82, 623.2, 626.2(b) and 627.13(b) of the regulations, which denial was also contrary to the due process clause of the Fifth Amendment to the United States Constitution. (He made a like motion, setting forth the same reasons in support thereof, at the close of all the evidence. His motion was denied.) The present motion was made within the five day limit provided by rule.

 Defendant registered with Local Board No. 2 of Pittsburgh, July 1, 1941. In his reply to the questionnaire submitted, he claimed exemption from all training and service as a minister of religion and requested that he be classified IV-D. September 8, 1941, the Local Board classified him as he requested and he remained in that classification until April 18, 1944 when he was classified I-A. He had two or more hearing before the Local Board on the question of classification in 1944, at which hearing, in addition to written evidence, he submitted to lengthy oral examinations, which included evidence relating to his ordination, training, secular work, education, duties as a minister, etc. After his classification in I-A, he took an appeal from the decision of the Local Board to the Board of Appeal. The Local Board sent to the Board of Appeal the record of the Local Board, which did not contain his oral evidence or a summary thereof. The decision of the Local Board was affirmed by the Board of Appeal. On October 7, 1946, he was ordered to submit to induction into the Armed Forces of the United States, which he refused to do.

 In Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 424, the Supreme Court, on February 4, 1946, handed down an opinion in which it stated inter alia, that:

 'Estep's local board classified him as I-A, i.e., as available for military service. Sec. 5(d) of the Act exempts from training and service (but not from registration) 'regular or duly ordained ministers of religion.' Under the regulations those in that category are classified as IV-D. Estep, a member of Jehovah's Witnesses, claimed that he was entitled to that classification. The local board ruled against him. He took his case to the appeal board which classified him as I-A. He then asked the State and National Directors of Selective Service to appeal to the President for him. His request was refused. The local board thereupon ordered him to report for induction. He reported at the time and place indicated. He was accepted by the Navy. But he refused to be inducted, claiming that he was exempt from service because he was an ordained minister of the gospel.

 'He was indicted under § 11 of the Act for wilfully failing and refusing to submit to induction. He sought to defend on the ground that as a Jehovah's Witness he was a minister of religion and that he had been improperly denied exemption from service, because the classifying agencies acted arbitrarily and capriciously in refusing to classify him as IV-D. He also claimed that his right to an effective appeal had been denied because the local board unlawfully withheld certain relevant documents from the appeal board and included improper material in the record on appeal. The District Court rejected these defenses and did not permit the introduction of evidence to sustain Estep's contention. The jury found him guilty and he was sentenced to imprisonment for a term of five years. * * *

 'Since the petitioners were denied the opportunity to show that their local boards exceeded their jurisdiction, a new trial must be had in each case.'

 In Eagles v. Samuels, 329 U.S. 304, 67 S. Ct. 313, 317, the Supreme Court, in an opinion dated December 23, 1946, in a habeas corpus case, arising under the Selective Training and Service Act of 1940, stated:

 'The function of habeas corpus is exhausted when it is ascertained that the agency under whose order the petitioner is being held had jurisdiction to act. If the writ is to issue, mere error in the proceeding which resulted in the detention is not sufficient. United States ex rel. Tisi v. Tod, supra. Deprivation of petitioner of basic and fundamental procedural safeguards, an assertion of power to act beyond the authority granted the agency, and action without evidence to support its order, are familiar examples of the showing which is necessary. * * *

 '* * * Not every procedural error, but only those so flagrant as to result in an unfair hearing render the proceedings vulnerable in a collateral attack.'

 In Smith v. United States, 4 Cir., 157 F.2d 176, 182, which was before the Supreme Court at the same time as Estep v. United States, supra, a retrial took place in the District Court and on appeal was before the Circuit Court of Appeals aforesaid. The Court, in an opinion by C.J. Soper, stated:

 'These regulations clearly require that the record of a registrant on appeal to the board of appeal shall contain a written summary of all the facts considered by the local board in making its classification; and since the conclusions of the board of appeal are necessarily based upon the written record, omission of material facts deprives the registrant of his right to an adequate consideration of his case on appeal and amounts to a denial of due ...

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