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UNITED STATES v. FRY

March 6, 1952

UNITED STATES
v.
FRY



The opinion of the court was delivered by: KAUFMAN

The defendant urges two grounds upon which there should be a judgment of acquittal. For his first ground he says that there was no reasonable basis in fact for the action of the local draft board in refusing deferment.

For his second ground he states that there was a violation of the due process provisions of the Constitution in that he did not receive a notice of reclassification after his hearing before the board on June 8, 1949, and further, that the local board did not summarize in writing the information which he had supplied at that hearing as required by Regulation 1624.2 of the Selective Service Regulations.

 With respect to the first ground urged by the defendant, the law has been enunciated quite clearly by two cases in the United States Supreme Court; Estep v. United States, 1946, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567, and Cox v. United States, 1947, 332 U.S. 442, 68 S. Ct. 115, 92 L. Ed. 59.

 The Supreme Court, speaking in the Estep case, discussed the language contained in Title 50, U.S.C.A.Appendix, § 460(b)(3) which makes the decision of the local board final, and the decision of the Appeal Board final. 'Final' was defined in the Estep case 327 U.S.at pages 122-123, 66 S. Ct.at page 427, 90 L. Ed. 567 as follows: 'The provision making the decisions of the local boards 'final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.'

 The question of whether there is a basis in fact for the classification of the registrant is a question of law for the courts to determine, and the Cox case so held. The court, speaking in the Cox case 332 U.S.at pages 448-449, 68 S. Ct.at page 118, 92 L. Ed. 59, adopted verbatim its language in the Estep case: "The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant."

 The court in the Cox case stated further 332 U.S.at page 453, 68 S. Ct.at page 120, 92 L. Ed. 59; 'Consequently when a court finds a basis in the file for the board's action that action is conclusive. The question of the preponderance of evidence is not for trial anew. It is not relevant to the issue of the guilt of the accused for disobedience of orders. Upon the judge's determination that the file supports the board, nothing in the file is pertinent to any issue proper for jury consideration.'

 After hearing the evidence and after examining the exhibits in this case, I have come to the conclusion that there is a basis in fact in this record for the classification. The defendant sought deferment on two grounds: one, that he was a minister of a sect known as Jehovah's Witnesses, and the second that he was a conscientious objector. There was full compliance with the Selective Service Act and its regulations before a determination was made rejecting deferment on both grounds.

 I observe from the Selective Service file that the defendant had, upon the filing of his questionnaire (Exhibit 2-A) asserted that he was a student preparing for the ministry under the direction of the Watchtower Bible & Tract Society. He also stated that he was at that time working as a radio repairman, repairing radio receivers, and that his employer was one James Pascucci of Great Kills, Staten Island, New York. He said he was earning $ 30 a week and that he worked an average of 48 hours per week at this occupation. Accompanying his Selective Service questionnaire was a statement by the registrant in which he stated that he was a British subject and therefore an alien, and because of this fact he was applying for exemption from military service in the armed forces of the United States. There was also a statement accompanying the questionnaire in which the registrant stated, 'I should like to point out that I am not a full-time student at any theological school. I do attend a theocratic ministry school once each week, however. This school is under the direction of the Watchtower Bible & Tract Society. School sessions are held in the local meeting hall of Jehovah's Witnesses located on Oceanic Avenue, in Annadale.'

 The registrant was originally classified in Class 4-C- an alien classification- on November 1, 1948. Form 110 was mailed to him on November 18, 1948. On March 25, 1949, a form 150, a conscientious objector's form, was mailed to the registrant. This form, Exhibit 2-C, was filled out and returned by the registrant and is part of the Selective Service file.

 In this form the registrant sets forth fully what he considers the basis for his conscientious objection to service in the armed forces of the United States.

 After the receipt of this form the Selective Service board on April 22, 1949 reopened his case and reclassified the registrant in class 1-A-O, which qualifies a registrant for noncombatant military service, and on May 6, 1949, a form 110 was mailed to him advising him of this decision.

 Subsequently the registrant sent two letters to the local draft board, Exhibits 2-E and 2-F, dated May 15, 1949. In Exhibit 2-E the registrant acknowledges receipt of his classification form, classifying him in 1-A-O. He stated: 'I was classified as 4-C. I am filing this notice of appeal with you and ask that you take into consideration the fact that I am a British subject and therefore an alien.'

 The other letter sent the same day acknowledges receipt of his 1-A-O classification and states: 'I am writing to request a personal appearance before the Local Board to appeal this classification. I have in my questionnaire explained my position as a minister and I have also pointed out the fact that I am an alien.'

 The registrant appeared before the local board on June 8 for a personal hearing, and I find in the Selective Service file, Exhibit 2-C, dated June 8, 1949, a paper which purports to be a summary of the statement of new matter given by the registrant on that day, and it states: 'Peter M. Fry appears and claims exemption as a minister of the Jehovah's Witnesses, states he does not devote full time to his work as a minister. Mr. Brenner states he is not on the list certified by the Jehovah's ...


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