Appeal from the District Court of the United States for the Eastern District of New York.
Before SWAN, CHASE, and CLARK, Circuit Judges.
Defendant, Robert Carl Hoffman, a youth of twenty, having been found guilty by a jury of failing to report for induction into the Army of the United States, appeals from the judgment and sentence by the court to the maximum term of imprisonment of five years provided by the statute, 50 U.S.C.A. Appendix, § 311. While defendant's own testimony was sharply in conflict with the evidence for the prosecution, there was clearly evidence to sustain the conviction and the question before us is whether reversal is required by errors in the trial.
Defendant was born in Germany on July 6, 1922, of a German mother and an American father, a soldier who had served in the American Army of Occupation in Germany following the armistice of 1918. He was brought to this country as an infant and has resided here since. On September 25, 1942, he filed his Selective Service questionnaire with his Draft Board, but attached to it a letter in his handwriting, which expressed his unwillingness to fight against his german relatives or to serve except on condition that he be placed in a noncombatant unit for service within the defined boundaries of the United States. The importance of this letter in the case compels quotation. Addressed "To Whom it may concern," it stated that the writer felt it his duty to make known "the following facts" as to his service in the armed forces of the United States, and that though he was "most certainly a Catholic," yet his religion did not instruct him to be against war or to be a conscientious objector, though he felt his conscience "does rule me in this matter." It continued:
"I am German born, of a German born mother. Many relatives, on my mother's side are now residing in Germany. To fight against these people would be to destroy my own family. I care not it they are Nazi's or otherwise.I consider myself a part of them and they a part of me. Nor could I force myself to fight against any of German's allies. They are Germany's friends and thereby are the friends of part of my family. I could never in all clearness of conscience, cut their throats.
"Once again, I wish to make it known. Religious training does not enter into this matter.
"In regard to serving the United States of America, I hereby declare:
"I will serve the American Army on the following conditions:
"1st - That I be placed in a non-combattant unit and -
"2nd. That this unit will be of serve only within the defined boundaries of the United States of America.
"I have a knowledge of stenography. Perhaps, I can be of some service in the clerical field."
And it ended, "For considering this statement, the reader has my full appreciation."
Obviously such an attitude as was here disclosed could lead only to trouble if persisted in. The country's laws require military service of its citizens even with enemy relatives; and other young men in similar positions have had to respond, and have done so without cavil. Indeed, after this letter the question for the various public officials involved was substantially whether attempts at dissuasion were worth while, or whether, as they seem soon to have concluded, speedy trial and incarceration was the only outcome to be looked for.
Thereafter, as was his right, defendant requested a hearing of the Board, which was granted him on October 6, 1942. A member of the Draft Board testified at the trial that defendant was asked whether his objection equally applied to Japan and Italy and that he answered that it did, that they "were allied with Germany and that he would feel equally in their case that, if he were to serve, he would be cutting the throats of his relatives in Germnay. The Board then told him they felt that he was misinformed and misguided, and asked if he had discussed his position with his pastor. He said he had not; and the Board recommended that he see his pastor and discuss the case and report back to the Board."
Although defendant attempted to show at the trial that he had talked with his priest, who advised him to serve, and that he had so reported to the Board, this hearing seems to be the only personal contact he had with the Board itself, which proceeded to his classification in apparently routine manner. He had been directed to go to a doctor at Laurelton, Long Island, for his physical examination and Wasserman test, which he did; and he was classified 1-A on October 8. He was then directed to report for induction into the Army on November 24, 1942, at 8 a.m. at the Board's quarters in Jamaica, Long Island. The charge against him is that "he, the said defendant, did unlawfully, wilfully, and knowingly fail and neglect to report for such induction at the time and placed [sic] fixed in said notice." What transpired on that morning is the crux of the case. But the trial developed the sharpest conflict between the two persons present, Miss Ellen Mathews, the chief clerk of the Board, and defendant. Admittedly defendant did not appear at that hour, but did appear later in the morning. Miss Mathews testified that he appeared at about 10:30 a.m., but definitely refused to serve, as "he figured that the United States has stabbed Italy and Japan in the back." He himself testified that he came at about 9, having talked with his priest and being prepared to go, as he stated to Miss Mathews. Miss Mathews also testified that it was the custom of the Board to send ...