The opinion of the court was delivered by: FOLLMER
Defendant, David Charles Wenner, has been indicted for wilfully refusing to perform civilian work contributing to the maintenance of the national health, safety and interest, to wit, by quitting such civilian work at Mount Alto State Tuberculosis Sanatorium at South Mountain, Pennsylvania, to which he had been assigned by his Local Draft Board, all in violation of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, §§ 451-470, and the Selective Service Regulations duly issued pursuant thereto and then in full force and effect. 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. 94 of Hazleton, Pennsylvania, being its complete file in relation to this defendant. An examination of the file reveals that defendant filed his Selective Service System Classification Questionaire with his Local Board March 14, 1951 in which he requested a IV-E (conscientious objector opposed to both combatant and noncombatant training and service) classification and also requested that he be furnished Special Form for Conscientious Objector (SSS Form No. 150).
On March 26, 1951 defendant filed SSS Form No. 150 in which he signed Series I (B) 'Claim for Exemption', and in which he asserted that he was conscientiously opposed to participation in war in any form and to participation in noncombatant training or service in the armed forces, and requested exemption therefrom. Both the Questionnaire and Form No. 150 were implemented by statements setting forth the basis of his claim.
On June 5, 1951 his Local Board classified defendant I-A. On July 10, 1951 defendant was given a personal hearing before the Board, after which he was again classified I-A by the Local Board. On July 19, 1951 defendant wrote to the State Appeal Board appealing from his I-A classification and stating, inter alia:
'At this time I wish to appeal my classification of I-A given to me by Local Board No. 94 in Hazleton, Pennsylvania. I am entitled to the classification of Conscientious Objector, IV-E, and hope that you gentlemen will weigh the following facts carefully and without prejudice as to my claim to the IV-E classification:'
He follows this statement by quoting in part Section 1622.20 relating to Class IV-E, then sets forth his position as a conscientious objector, citing a number of quotations from the Bible. He ends his letter as follows:
'Due to these truths brought to this Board's attention, it would be well in the Lord's sight to give a fair and just decision as to my claims as a conscientious objector.'
On November 19, 1952 defendant addressed the following letter to his Local Board:
'In my previous letter, I was appealing for a IV-E classification. I am now informed that this classification no longer exists.
'I am conscientiously opposed, by reason of my religious training and beliefs, to both combatant and noncombatant training and service in the armed forces.
'I am, therefore, appealing my classification of I-A to that of a conscientious objector available for civilian work contributing to the maintenance of the national health or safety.'
On November 25, 1952 he was granted a second hearing before the Local Board. The minutes of this meeting record the following colloquy:
It would seem from the above that the defendant not only asked for the very classification which he was later accorded but that he was actually advised by ...