Before MARIS, KALODNER and STALEY, Circuit Judges.
The question presented on this appeal by the defendant, Donald Macio Hurt, from his conviction in the District Court for the District of New Jersey of violating the Universal Military Training and Service Act*fn1 is whether the trial judge erred in denying the defendant's motion for judgment of acquittal. The answer turns on whether there is basis in fact for the action of the Selective Service authorities in refusing to classify Hurt as a minister under the Act. The record before the Selective Service authorities disclosed the following undisputed facts:
Hurt, at the age of 18, registered on October 22, 1951 with Selective Service Local Board No. 33 in Asbury Park, New Jersey. A classification questionnaire was sent to him by the board in which and in his accompanying letter he stated that he had served regularly as a minister of Jehovah's Witnesses since January 15, 1946; that he had been formally ordained on August 9, 1946 at Cleveland, Ohio, when he was baptized into Jehovah's Witnesses; that he was a student preparing for the ministry under the direction of the Watchtower Bible and Tract Society attending Kingdom Hall at 1010 Corlies Avenue, Neptune, New Jersey, and that he was pursuing a full time course of instruction leading to his entrance into Gilead Bible College located at South Lansing, New York, in which he had been pre-enrolled. He further stated that his occupation was "The Full Time Ministry - Pioneering for Jehovah God"; that he advertised magazines of the Society on street corners; that he was conductor of the Theocratic Ministry School in his congregation and was also Area Company Bible Study Conductor; that he worked an average of 90 hours per week; that he was also engaged as a part-time handy man and that his prior experience was stock boy, painter, and handy man. He had completed almost two years of high school and had taken courses in analysis and study of the Bible in the Theocratic Ministry School, Watchtower Study and Company Bible Study.
In his questionnaire Hurt requested the board to furnish him the special form for conscientious objectors and further stated that in his opinion his classification should be in Class IV-D, the classification for a minister. In an accompanying letter the Company Servant of the Asbury Park Company (West Side Unit) of Jehovah's Witnesses of which Hurt was then a member stated that he was then serving as Study Conductor and School Servant.Also accompanying the questionnaire was a certificate of the Watchtower Bible and Tract Society that Hurt was appointed as a pioneer minister on July 1, 1951 "and acts as a direct representative of this organization and has since been organizing and establishing churches and generally preaching the doctrines and principles of Jehovah's witnesses in a territory assigned to him." The certificate further stated that he "is authorized to perform the ordinary rites and ceremonies recognized and employed by Jehovah's witnesses, such as the baptismal ceremony, the burial ceremony, etc."
The questionnaire and accompanying statements concerning Hurt's ministry were received by the board on December 4, 1951. The next day the board mailed Hurt the conscientious objector form, which was returned to the board completed on December 11, 1951. In the conscientious objector form Hurt also gave a chronological list of his jobs, showing work as dishwasher and busboy during the summers of 1947, 1948 and 1950, respectively, and that from 1951 "onward" he was employed by the Watchtower Bible and Tract Society of Brooklyn, New York, engaged in "Missionary Work or pioneering (Full time Servant)". On December 26, 1951 the board received a letter from Hurt requesting that his file be forwarded to Local Board No. 44 at Cambridge, Maryland, for classification. He informed the board that the Society in Brooklyn had chosen him "to go on a full time mission" in Cambridge "That is, preaching in the capacity as a pioneer or servant", and stated that due to his distance from Local Board No. 33 he would be put to a hardship to travel back from Maryland. No action appears to have been taken on this request. The board classified Hurt in Class I-A on February 4, 1952, notifying him by mail on the following day.
On February 12, 1952 the board received a letter from Hurt in which he objected to his classification and requested a personal hearing or a transfer to Local Board No. 44, again stating that he was a full-time minister entitled to classification in Class IV-D. On February 25, 1952 the board reviewed Hurt's file and recommended that his file should not be transferred to Maryland for hearing. He was advised that he would be granted a personal hearing on March 10, 1952, and that his classification in Class I-A was continued. After the hearing on March 10th the board entered the following summary:
"He states he is one of Jehovah's Witness and an ordained minister. Wishes a 4 D class. 18 years old. Born in Neptune. Now lives in Md. 2 years H.Sch. Works in Cambridge Md. as minister, a pioneer, putting in 100 hrs. of field work. No pay for ministry. Sells literature to pay expenses, including personal & upkeep of automobile. He left school to go into the ministry feeling was the most important thing for him to do."
But the local board continued the I-A classification and so notified Hurt. He appealed and his file was sent for review to the Appeal Board for New Jersey. The case was referred to the Department of Justice for investigation, hearing, and recommendation on the conscientious objector claim. A Special Assistant Attorney General informed the Appeal Board on March 16, 1953, inter alia, as follows:
"* * * He devotes all of his efforts to the 'ministerial' duties of a Jehovah's Witness. He was baptized in this faith in 1946 and has been active ever since * * *
"* * * He is a 'Pioneer' minister in the organization and also a 'Company Servant.' Former acquaintances considered him to be very religious and sincere in his beliefs. Registrant and his family are somewhat 'fanatic' concerning their religion, but there is no doubt of registrant's good faith. Present neighbors advise that he is 'above average' in conduct and appears very earnest in the furtherance of his religious work. His associates are all Jehovah's Witnesses and he spends all of his time contacting prospective church members.
"The Hearing Officer noted registrant's religious activity over a period of seven years and recalled the various positions which he held in the Jehovah's Witnesses organization. * * * The Federal Bureau of Investigation report was reviewed which established registrant's excellent character and reputation. The Hearing Officer concluded that he was conscientiously opposed to combatant and noncombatant duty by reason of religious training and belief. Accordingly, he recommended a I-O classification.
"After consideration of the entire file and record, the Department of Justice finds that the registrant's objections are sustained as to both combatant and noncombatant training and service. It is, therefore, recommended to your Board that the registrant be classified in Class I-Q."
Hurt was placed in Class I-O as a conscientious objector by the Appeal Board, and on April 14, 1953 was informed of the change in his classification. He was requested to submit three types of approved civilian work which he was qualified to perform. Hurt advised the board that he was qualified to perform services as a minister, naming as his choice of employer the Watchtower Bible and Tract Society. However, the board advised him that the Society was not among those approved for such employment by Selective Service National Headquarters. On June 15, 1953 Hurt entered voluntarily upon civilian work as an attendant at the Marlboro State Hospital at Marlboro, New Jersey,*fn2 but he left that employment on July 31, 1953 and refused to take any other. He was declared delinquent and was indicted for failing, in violation of the Universal ...