director. However, the National Headquarters refused to take any action on defendant's request for further appeal. The defendant was ordered to report for induction on June 17, 1953. He reported but refused to submit to induction into the armed forces.
The ruling of the state appeal board, which accepted the recommendation of the Special Assistant Attorney General in denying defendant's claim for conscientious objector status, is based upon the following ground: Defendant, in answer to question 5 of 'Special Form for Conscientious Objector', 'under what circumstances, if any, do you believe in the use of force', stated 'The only time that I will use force is when Jehovah God through his written word reveals to me that it is my duty and his will that force is to be used. This means theocratic warfare. I am not a pacifist. I am a servant of God.'
Defendant contends that the I-A classification was arbitrary and capricious and without basis in fact. If not arbitrary and capricious, then the determination that he was not entitled to exemption is final. Estep v. United States, 1946, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567.
The burden is on the defendant to show clearly that he is within the exemption which he claims, but no more than that. United States v. Bender, 3 Cir., 1953, 206 F.2d 247. The undisputed evidence shows that defendant is a bona fide member of the Jehovah's Witnesses religious sect and that he is 'by reason of religious training and belief, conscientiously opposed to participation in war in any form', and that he has conscientious objections which are based on his belief in a Supreme Being, whose authority, the authority of Jehovah, is superior to man made rules. This evidence stands unimpeached and uncontradicted on the record.
This Court is convinced that the appeal board, in accepting the recommendation of the Special Assistant Attorney General, was applying an erroneous standard in determining whether defendant was conscientiously opposed by religious belief to participation in war in any form. Since defendant approved of and apparently would participate in theocratic wars, the Special Assistant Attorney General concluded that defendant was not opposed to 'participation in war in any form'. Thus it is seen 'war in any form' was construed to include theocratic wars. However, the Court does not believe that Congress intended such an unconscionable interpretation to be placed on this phrase. War, as the term is commonly used, is a conflict by force between two or more nations; it is a conflict of violence by one politically organized body seeking to overcome or overthrow another political entity. It is patent that Congress was legislating in regard to this type of struggle, and was not concerned with wars carried on by the command and direction of God, i. e., theocratic wars. Taffs v. United States, 8 Cir., 1953, 208 F.2d 329; United States v. Hartman, 2 Cir., 1954, 209 F.2d 366. See also United States v. Hagaman, 3 Cir., 213 F.2d 86. It is clear that Congress intended by this section to exempt from service in the armed forces those persons who were conscientiously opposed by reason of religious training and belief to any form of participation in a flesh-and-blood conflict between nations. Defendant's positive and uncontradicted statement was that he was conscientiously opposed to participation in war because he regarded his duties to Jehovah as being paramount to any duties arising out of human relationships. This evidence not being impeached, the test of the statute is met. Had there been a finding, or any evidence to show that his stated beliefs were spurious, the Court would have a different case before it.
A careful perusal of the record compels this Court to conclude that the appeal board had no evidence before it to support the classification of defendant in Class I-A. Since there is no basis in fact for the I-A classification which was finally given defendant, the order to report for induction was void. The order to report for induction being void, defendant was guilty of no offense in refusing to submit to induction. In my opinion the denial to defendant of the status of a conscientious objector was so arbitrary and capricious that it is the duty of the trial judge to grant defendant's motion for a judgment of acquittal. It is not necessary for the Court separately to inquire whether there is adequate basis in fact to support the denial of defendant's claim for exemption as a duly ordained minister.
Defendant's motion for a judgment of acquittal will be granted and an appropriate order will be filed herewith.