The opinion of the court was delivered by: MURPHY
Defendant found guilty by a jury of wilfully refusing to submit to induction into the armed forces of the United States,
moves for judgment of acquittal. The record consists of the Selective Service file,
testimony of the clerk of the local board and of an army officer; the latter as to the refusal to be inducted. Defendant did not testify or offer any independent testimony on his behalf.
A valid order to report for includes the duty to submit to induction. See Billings v. Truesdell, 321 U.S. 542 at page 557, 64 S. Ct. 737, 88 L. Ed. 917. While not disputing the refusal to be inducted defendant contends that the induction order was invalid and unenforceable. He claims he was not classified in conformity with the Act and regulations adopted pursuant thereto, that he was not afforded procedural due process, and that the local and appeal boards, without basis in fact and in an arbitrary and capricious manner, denied him the classification to which he was entitled.
In answering his classification questionnaire defendant advised that he had been working in a hat factory for three years at $ .92 per hour 40 hours a week; that he owned some livestock and had 38 acres of land under cultivation. Stating that his ambition was to devote all of his time to farming, he requested an agricultural deferment, assuring the board that he would increase production and contribute a satisfactory amount to the war effort and civilian use. He stated that the section (Series VI) as to ministers and students preparing for the ministry did not apply, but he requested a special form, SSS Form 150, for conscientious objectors.
In answering Form 150 he stated that he was a Jehovah's Witness, that since his youth he had studied the Bible with the aid of the Watchtower, relying for guidance upon Richard Palms, the leader of the Kingdom Hall which he attended. He supplied a copy of the Watchtower as a statement of the creed of the Jehovah's Witnesses relative to participation in war. While when asked the question, 'Have you ever given public expression * * * to the views expressed * * * as the basis for your claim made in Series I (Claim for Exemption)?' he answered 'No', he did state that in addition to his factory and farm work he witnessed from door to door.
Based upon the foregoing, the local board classified him 1-A and notified him thereof on SSS Form 110. Defendant then wrote the local board as follows: 'On the strength of my right to appeal my service classification, I wish to state that I am a minister of the gospel. On the strength of this fact I wish to appeal this classification and request a personal appearance to present evidence to this fact.'
The local board granted him a personal appearance. Defendant appeared, answered questions and submitted a typewritten statement signed by him, an affidavit of Richard Palms and a copy of Watchtower. In his written statement defendant spoke of his witnessing activities, discussed ordination and the prerequisites thereof as understood by Jehovah's Witnesses. He worked in the factory to aid him in his farming, and in secular work to aid him in his ministry. He did not believe in taking part in armed conflicts. He spoke in favor of agricultural deferments and pointed to the provisions of the Act as to deferments of conscientious objectors and exemptions of ministers. He asked the board before making a decision to consider his assigned duties and the manner in which he was regarded by other Jehovah's Witnesses, and not to rely upon any personal ideas, feelings or prejudices as to what constituted an ordained minister. The affidavit stated that for years on many occasions defendant engaged in preaching activities, that reports and records thereof were available. Such records and reports were not however produced.
The clerk of the local board testified that when defendant completed his presentation, the members of the board discussed the matter and the board chairman then told the registrant that his 1-A classification would remain the same, his appeal would be honored; that if he was found acceptable after physical examination for the armed service his file would be forwarded to the appeal board.
On the cover sheet of defendant's file appears the following: '3/19/51. Board met with registrant. No action taken. See note in file.' The note, dictated by the chairman of the board, reads as follows:
'The board met with registrant today. The registrant informed the board that he left his place of employment on March 3, where he had worked for three years in a hat factory. The Board chairman immediately pointed out that he was classified as 1-A on February 21, which meant he left his position about two weeks later. He then mentioned that his father had a farm for 23 years but that he felt he was going to start getting this farm in shape. Prior to this time he stated he had gotten a few acres in shape for their own family use so that they would not be dependent upon other people.
'The registrant then pointed out that he was a minister of the Gospel and the only evidence he presented to substantiate this fact was some paraphernalia from the Watchtower Association of the Jehovah Witness. The registrant was asked if he was an ordained minister and he said Jehovahs Witnesses became ordained when they started distributing their literature. The Board felt this was not sufficient evidence to warrant a 4-D classification and informed the registrant his case would be sent up to the Appeal Board following his physical examination.'
Defendant being found physically acceptable his file was sent to the appeal board which in turn asked the Department of Justice for an advisory recommendation. The Department of Justice did not concur in the IV-E recommendation of its hearing officer and recommended rejection of defendant's claim stating 'Registrant's inconsistent statements and his offer to contribute to the war effort are believed to be incompatible with a sincere conscientious objector's claim.'
The appeal board voted 4-0 to classify defendant 1-A and sent him Form 110 notifying him thereof. After he was ordered to report for induction, the file was reviewed by the State Selective Service headquarters; they in turn were not convinced of the validity of defendant's claim to be either a conscientious objector or a minister of religion, and therefore took no action to stay induction.
On cross-examination the clerk of the local board said that when the chairman told the registrant his classification would remain the same he also stated that the matter was out of their hands because he had taken an appeal. It appears, however, that the board received and considered everything submitted by the defendant, decided that he was not entitled to a change of classification, and advised him thereof before he left the board room. As a matter of law the board could take no further action except to arrange for physical examination ...