behalf an appeal is taken to the board of appeal. * * * '
'627.24(b) In reviewing the appeal, the appeal board shall not receive or consider any information which is not contained in the record received from the local board except (1) the advisory recommendation from the Department of Justice under section 627.25, and (2) general information concerning economic, industrial, and social conditions.'
The evidence discloses that the defendant on two or more hearings before the Local Board, gave oral evidence at length relating to his status as a minister of religion. This evidence was considered by the Local Board in making its classification as appears from the uncontradicted evidence of the Chairman of the Board. Not any of the oral evidence taken by the Local Board, or a summary thereof, was sent to the Appeal Board. The Board of Appeal, therefore, acted upon the classification of the defendant without having all the evidence before it, which was received and considered by the Local Board in making its classification of the defendant. The result is that defendant did not have a fair hearing and he was denied due process of law.
The evidence at the hearing in this case, of the oral evidence received by the Local Board, was uncontradicted and supported by several witnesses. The evidence was considered by the Local Board in the classification of the defendant as appears from the uncontradicted evidence of the Chairman of the Board at the trial in this case. A verdict in favor of the plaintiff under such circumstances would have to be set aside and a new trial granted. The defendant's motion at the close of the evidence for a directed verdict should have been granted.
In Gunning v. Cooley, 281 U.S. 90, 50 S. Ct. 231, 233, 74 L. Ed. 720, which was a civil case, the Supreme Court in an opinion by Justice Butler stated:
"When, on the trial of the issues of fact in an action at law before a Federal court and a jury, the evidence, with all the inferences that justifiably could be drawn from it, does not constitute a sufficient basis for a verdict for the plaintiff or the defendant, as the case may be, so that such a verdict, if returned, would have to be set aside, the court may and should direct a verdict for the other party.' Slocum v. New York Life Insurance Co., 228 U.S. 364, 369, 33 S. Ct. 523, 525, 57 L. Ed. 879, (Ann.Cas.1914D, 1029).
'A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The decisions establish a more reasonable rule 'that in every case, before the evidence is left to the jury, there is * * * literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.' Improvement Company v. Munson, 14 Wall. 442, 448, 20 L. Ed. 867; Pleasants v. Fant, 22 Wall. 116, 122, 22 L. Ed. 780.'
The foregoing opinion was written but not filed prior to the decision of the Third Circuit Court of Appeals handed down April 28, 1947 in the case of United States v. Zieber, Jr., 161 F.2d 90.
In that case, Zieber, a member of the sect known as 'Jehovah's Witnesses', was charged in the Eastern District of Pennsylvania of violating the Selective Training and Service Act of 1940, in that he did knowingly fail to comply with an order of his Local Board to entrain for work of national importance. He was found 'Guilty' and sentenced. On appeal, the judgment of conviction was reversed. The Court, in an opinion by Biggs, C.J., states, inter alia:
'If the Local Board did refuse to consider new or further information offered by Zieber and to include it in his cover sheet and to consider it in classifying him after it had been offered, or if the Local Board refused to receive new or further information which Zieber endeavored to offer to it, we think it is clear that he was denied due process of law. Moreover, a failure by the Local Board to perform the duties imposed upon it by the Selective Training and Service Act and the regulations could not have been cured by the de novo consideration of Zieber's classification by the Appeal Board if material which should have been included by the Local Board in Zieber's file was not included so that the Appeal Board could consider it.
'Whether a selectee has or has not been afforded due process of law by the Selective Service agencies, there being disputed fundamental questions of fact as in the case at bar, should have been determined by the jury under proper instructions from the court. If the jury had believed that Zieber had given new or further information to his Local Board or had endeavored to give new or further information to the Board and had been prevented from doing so by the action of the Board, under a proper charge from the trial judge the jury could and should have found Zieber not guilty of failing to comply with the order of the Local Board to entrain for work of national importance. Zieber was not under a duty to comply with an illegal order. The court below did not present the important questions of fact, hereinbefore outlined, to the jury for its determination or instruct the jury that action of the Local Board contrary to the Act or regulations 'would be lawless and beyond its jurisdiction'. Estep v. United States, 327 U.S. 114, 121, 66 S. Ct. 432, 427. * * * ' * * * Good faith and honest intention on the part of the Local Board is not enough. There must be full and fair compliance with the provisions of the Act and the applicable regulations.'
In the above case there were 'disputed fundamental questions of fact' relating to the testimony which Zieber stated he offered to the Local Board. In the present case there were no disputed questions of fact. The uncontradicted testimony of the defendant and of the Chairman of the Local Board was to the effect that Garvin did testify orally before the Local Board; that said testimony was considered by the Local Board; that it, nor a summary thereof, was not reduced to writing and filed and hence was not sent to the Board of Appeal for its consideration.
And now, to wit, May 2, 1947, the motion of defendant for judgment of acquittal, made within five days after the jury was discharged, came on for hearing, and after hearing and consideration thereof, it is ordered that the verdict of the jury be set aside and judgment of acquittal be entered in favor of the defendant.
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