The opinion of the court was delivered by: FOLLMER
Defendant, Richard Howard Fair, has been indicted for refusal to be inducted into the armed services of the United States in violation of Title 50 U.S.C.A.Appendix, § 462. Defendant entered a plea of Not Guilty and waived his right to trial by jury. The case was accordingly tried to the Court without a jury.
At the trial the Government produced the file of Local Board No. 31, Reading, Pennsylvania, being its complete file in relation to this defendant. An examination of the file reveals that defendant prepared the Selective Service System Classification Questionnaire, which was received by his local board on March 12, 1952. The questionnaire was returned for completion and thereafter received and filed by the Board on March 17, 1952. In the questionnaire defendant stated that he was a minister of religion of the Jehovah's Witnesses Sect and had been such since April 10, 1946, and that he was regularly serving as a minister. The spaces concerning ordination, ministerial student and theological school were all left blank. He stated that he was then and had been since August 25, 1951, employed as a platform hand, loading and unloading trailers, working forty hours per week at an hourly wage of $ 1.32 1/2. He furthermore stated, 'In view of the facts set forth in this questionnaire it is my opinion that my classification should be Class IV-D or IV-E.' Finally, he stated that by reason of religious training and belief, he was conscientiously opposed to participation in war in any form and requested the local board to furnish him a special form for Conscientious Objector (SSS Form No. 150) which he was to complete and return to the local board for its consideration.
On March 17, 1952, the Board received SSS Form No. 150 unsigned on the first page under 'Claim for Exemption'. In this form defendant stated, under Series II, 3., 'I get my belief and training from home bible studies, public meeting, Theocratic Ministry School, Watchtower studies, and Service meetings, which are conducted by ministers like myself.', and under 6., 'I attend the Watchtower Studies, Service meetings, Public meetings, Company Bible studies, give Public Bible talks and also go from house to house preaching and teaching the people who have a hearing ear toward Jehovah God's good news.'
As to the extent of his public expression he stated, under 7., 'Yes I have given public expression. One on Feb. 17, 1952 and another I will be giving on March 23, 1952, at our local Kingdom Hall at 12 North fourth Street.' He gave the name of Edward F. Finkbeiner, Company Servant, as the pastor or leader of his group. He signed the registrant's certificate on the last page. With the SSS Form No. 150 defendant submitted a written statement captioned 'The answer to question (d) & (e)', and which obviously referred to the questions asking for the name of his church leader and for a description of the creed or official statements of his sect in relation to participation in war. This statement covered nearly seven sheets of paper in which by copious scriptural quotations he attempted to justify his 'simple ordination by public immersion.'; his divinely appointed obligation to the '70,000,000' unchurched people in the United States; his obligation to 'fight with weapons which are not carnal, these are the mouth, the faculty of reason, the process of logic and the law of the land.'
On April 10, 1952, defendant was classified I-A and was so notified by the Board April 11, 1952, on SSS Form 110.
On June 25, 1952, the Appeal Board, having concluded that he was not entitled to a classification lower than I-O or to a classification of I-O, forwarded the file to the Department of Justice for an advisory recommendation. Subsequently he was accorded a hearing before Hon. Curtis Bok, Hearing Officer, who recommended that he be classified I-O.
Under date of March 27, 1953, the Special Assistant to the Attorney General forwarded to the Appeal Board his advisory recommendation. This paper, while stating that although the F.B.I. report established for defendant a good reputation and affiliation with the Jehovah's Witnesses for a number of years; that two fellow employees believed him to be sincere and of good faith in his religious beliefs; that he had answered all questions without hesitation and with conviction; that he appeared to be a sincere and devoted Jehovah's Witness; nevertheless stated 'his acceptance of the principle of theocratic warfare clearly removes him from the purview of the Universal Military Training and Service Act which requires opposition to participation in 'war in any form' if one is to be exempt from combatant duty.' It further indicated that the defendant's objections to combatant and noncombatant service were not sustained and accordingly recommended that the claim for exemption from both combatant and noncombatant training and service be not sustained.
The recommendations of the Department were reviewed by the Appeal Board April 9, 1953, and on that date, on recommendation, the registrant was classified I-A. Thereafter, on June 3, 1953, defendant refused to be inducted. He was indicted and the present trial resulted.
The Government takes the position that defendant having failed to request a personal appearance before his local board, failed to exhaust his administrative remedies and thereby waived his right in this trial to attack the validity of the classification given him by the Selective Service System.
In his questionnaire defendant requested a IV-D (ministerial) or IV-E (conscientious objector opposed to both combatant and noncombatant military service). The questionnaire was filed with the Local Board March 12, 1952.
32 C.F.R. Part 1622 originally carried, inter alia, the following classifications:
Class I-A: Available for military service.
Class I-A-O: Conscientious objector available for
noncombatant military service.
Class IV-D: Minister of religion or divinity
Class IV-E: Conscientious objector opposed to
both combatant and noncombatant
training and service.
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