Before McLAUGHLIN and FORMAN, Circuit Judges, and LEAHY, District Judge.
Lloyd Odin Lawson (hereafter the appellant) was convicted under an indictment charging him with violating the Universal Military Training and Service Act, 50 U.S.C. App. § 462*fn1 He was tried in the United States District Court for the District of New Jersey with a jury and was sentenced to a term of two years imprisonment. The execution of the sentence was suspended and he was placed on probation for five years subject to a special condition that he should report to the New Jersey State Hospital at Greystone Park, New Jersey, for civilian work for a period of two years. He now appeals from the judgment of conviction and sentence.
Much testimony was adduced and many documents were presented at the trial from which it appeared that: The appellant was born March 26, 1938 in Jersey City, New Jersey. He registered under the Selective Service System with Local Board No. 24 for New Jersey. He returned his classification questionnaire to the Board on June 29, 1957, in which he claimed that by religious training and belief he was conscientiously opposed to war in any form. He requested the Board to furnish him with a special conscientious objector form (SSS Form 150).
Upon its receipt he filled it in, indicating that he was a Christian of no particular sect, but that, under the guidance of his parents, he had engaged in Bible study and discussions, as a result of which he reached the conclusion that he could not conscientiously participate in war. He returned the form September 12, 1957. After the lapse of considerable time and opportunity for appellant to substantiate his request the Board, on May 18, 1961, classified him as a conscientious objector.
Having been ordered to report, on August 2, 1961, for a physical examination, appellant, on August 1, 1961, wrote the Board:
"To take the physical examination is in conflict with my conscientious beliefs. Please be advised I will not take the physical examination.
"I wish to inform you that I am willing to perform civilian work that contributes to the maintenance of national health, safety or interest."
He did not take the physical examination.
Thereafter, various exchanges took place between the Board and appellant concerning the civilian work in which he could engage in lieu of induction into the Armed Forces.
On October 17, 1961, the Board wrote appellant, stating that within the next ten days he should report and make application for maintenance, hospital, or institutional work in one of the following institutions in New Jersey: State Hospital at Greystone Park; the Neuro-Psychiatric Institution at Skillman; or the State Hospital at Marlboro.
In a letter dated October 27, 1961, appellant replied stating that only two of the institutions had answered his letter inquiries, and that the only position open was institutional attendant. Regarding this position, he wrote:
"I believe it is my duty to inform you, within the ten day limit of your letter, of October 17, 1961 that I am not offering to perform the limited choice of job open to me."
Again, various exchanges between the Board and appellant concerning civilian work in lieu of induction took place culminating in a meeting at the office of the Board on June 21, 1962, attended by appellant, members of the Board, and a representative of the State Director. It was agreed there that appellant should apply for a job the next day, June 22, at the New Jersey State Hospital, Greystone Park, New Jersey.
On June 26, 1962, the appellant visited the Greystone Park State Hospital for an interview and filled out an application for employment there. John G. Matybell, the personnel assistant of the Hospital, who interviewed appellant, stated at the trial that to the best of his knowledge, he neither accepted nor rejected appellant's application for a job. He also testified:
"I told him about the jobs that were available at the present time and he didn't say either yes or no that he would accept them or that he wouldn't."
Appellant testified that Mr. Matybell promised to notify him by letter when a position was open for which he was fit. Contrariwise, Mr. Matybell stated at the trial that to the best of his knowledge he did not remember promising to so inform him since "[most] of the correspondence is handled through the Selective Board."
In response to the Board's letter the State Hospital informed the Board by letter dated June 28, 1962 that the position of institutional attendant at $59 per week was available. "If Mr. Lawson was interested in this type of employment," the letter of the Hospital continued, "I [Thomas M. Russo, personnel director] would appreciate having him complete and return the enclosed application."
In a letter dated August 7, 1962, appellant informed the Board that since July 4, 1962 he had been working for Goodwill Industries in Jersey City, New Jersey. It was his belief that this job fulfilled his civilian work obligation, since it appeared on a list of approved agencies and projects at Selective Service Headquarters in Newark during January of 1962. Goodwill Industries, however, had no such approval in New Jersey at that time though it was on the approved list of other states. The Board notified appellant of this fact by letter dated August 17, 1962.
Before receiving appellant's letter of August 7, 1962, a copy of an order was mailed to him on that same date, the substance of which is as follows:
"SELECTIVE SERVICE SYSTEM ORDER TO REPORT FOR CIVILIAN WORK AND STATEMENT OF EMPLOYER
August 7, 1962 (Date of mailing)
"To Lloyd (First name) Odin (Middle name) Lawson (Last name)
28 24 38 85 (Selective Service No.)
"Mailing address 1709 Summit Avenue (Street and number) Union City (City)
(Zone) New Jersey (State)
"Having been found to be acceptable for civilian work contributing to the maintenance of national health, safety, or interest you have been assigned to Institutional Work located at New Jersey State Hospital, Greystone Park, New Jersey.
"You are ordered to report to the local board named above at 9 A.M. on 20th day of August, 1962, where you will be given instructions to proceed to the place of employment.
"You are ordered to report for employment pursuant to the instructions of the local board to remain in employment for twenty-four (24) consecutive months or until such time as you are released or transferred by proper authority.
"You will be instructed as to your duties at the place of employment.
"Failure to report at the hour and on the day named in this order, or to proceed to the place of employment pursuant to instructions, or to remain in this employment the specified time will constitute a violation of the Universal Military Training and Service Act, as amended, which is punishable by fine or imprisonment or both.
Nancy M. Kukowski, Clerk (Clerk or Member of the ...