The opinion of the court was delivered by: DITTER
This case comes before the Court on a motion for judgment of acquittal or for a new trial. The defendant was convicted by a jury of failing to comply with an order to report for a physical examination, a duty required by the Selective Service Act, 50 U.S.C.A. App. § 462.
The following facts were established at the trial.
The defendant, Lamount Maurice Belgrave, had registered for the draft. On March 19, 1970, he was mailed a notice, which was not returned as undeliverable, to report for a physical examination on April 10, 1970. Defendant testified that he had not received this notice as he was no longer living with his mother to whose address it was sent.
MOTION FOR JUDGMENT OF ACQUITTAL
Belgrave contends that the Government's evidence was not sufficient to support a guilty verdict. Defendant argues that in order to be convicted for failure to report for a physical, the government must prove that he received notice to report, and also that he received the notice in time to comply.
In the instant case the trial judge charged:
"The rule itself is well settled that if a letter properly directed is proven to have been put into a post office box or delivered to a postman or a post office, a jury may infer from the known course of business in the postal department that the letter reached its destination in the usual time. . ." (emphasis added) (N.T. page 138).
"The thing that you are going to have to consider is this. If you decide that the order was mailed and that it was delivered to Mrs. Belgrave's home, did it ever come into the possession of the defendant . . ." (N.T. page 139)
Thereafter, the court said:
"The defendant can only be convicted if his failure to report was an intentional failure, a voluntary act on his part, an act done with specific intent of disobeying or disregarding the law by failing, neglecting or refusing to report for a physical examination." (N.T. page 142)
The defendant concedes the jury's verdict establishes that he received the draft board's notice, which was mailed on March 19, 1970. He contends, however, the verdict does not mean that he received the notice in time to comply by April 10, 1970.
When he testified at trial, Mr. Belgrave did not suggest the notice had come to him when it was too late to report. Therefore, the issue which he now raises was never presented to the jury in precisely this form.
Nonetheless, the verdict did establish that Belgrave acted ...