The opinion of the court was delivered by: BRENNAN
The above named defendants are brothers residing near Cairo, New York. They profess to be members of the sect known as 'Jehovah's Witnesses'. Each defendant is charged in a single count in an indictment with failing to submit to induction into the armed services of the United States, in violation of the Selective Service Act 50 U.S.C.A.Appendix, § 451 et seq. In the case of each defendant the immediate act of violation, as charged in the indictment, consists of his refusal to step forward as required in the proceeding constituting induction.
Each defendant, after the entry of a plea of not guilty to the indictment, appeared by an attorney, waived a jury trial, and consented that the three cases be tried together before the court; the evidence received to be applicable in each individual case.
The government made a prima facie case by the introduction of the Selective Service file of each defendant, and it was stipulated that each defendant refused at the induction center to take the necessary step to accomplish his induction.
Each defendant was called as a witness in his own behalf, and the essential part of his testimony evolves around his personal appearance before the Selective Service Board on February 28, 1951. The acting chairman of the Board was called by the government in rebuttal, and the material portions of his testimony also concerns the occurrences at the hearing on February 28, 1951, and the action of the Board subsequent thereto.
The defendants each make two contentions: (1), that the local board did not in fact reclassify the registrants at or after their appearance before the Board on February 28, 1951, as required by the Selective Service Regulations; (2), that there is no factual basis in the Selective Service files of each defendant which would warrant his 1-A classification. At the conclusion of the trial it was agreed that counsel would brief only the first contention, inasmuch as a decision adverse to the government would require a verdict of not guilty. If the decision were otherwise, then counsel would be afforded the opportunity to argue or brief the second contention.
Defendants' first contention will now be considered and decided. A brief statement of the essential findings will be made below which will apply in each case, unless otherwise indicated.
The defendants were properly registered with Local Selective Service Board No. 22 at Catskill, New York. They were classified by the Board and, after some changes in their individual classifications, were each classified on February 14, 1951, as 1-A. Upon the written request of each defendant, they were afforded the opportunity to appear personally before the Board on February 28, 1951, to submit additional evidence, review their files, discuss their classifications, and call the attention of the Board to any matters which may have been overlooked. Each defendant did so appear at the same time and in the presence of a couple of friends and co-religionists. The occurrences and discussion at the hearing may be considered as in dispute and will be referred to below. It is sufficient to say that each defendant was informed at such hearing that his classification would or did remain as 1-A. With the cooperation of the Board, the defendants appealed from their 1-A classification. Since in each case the appeal involved a conscientious objection claim, the usual procedure of referring same to a hearing officer was followed, and on November 5, 1951, the defendants Howard Graham and Glenn Graham were classified 1-O by the appeal board, and the defendant Douglas Graham was classified 1-A. Defendants Howard Graham and Glenn Graham thereupon appealed to the National Selective Service Appeal Board, and on March 3, 1952, Howard Graham was classified as 1-A, and on February 25, 1952, Glenn was similarly classified.
Before attempting to determine whether or not the defendants were accorded the full measure of their rights at the hearing held on February 28, 1951, reference will be made to the applicable regulations as they existed at the time in question. Regulation 1624.1(a) affords an opportunity for the registrant after his classification to appear in person before the local Board. There was no question but that each defendant availed himself of the opportunity, and that same was afforded. Regulation 1624.2, subdivision (b), provides that the registrant may discuss his classification, may present further information in his file which he believes the local Board has overlooked. Subdivisions (c) and (d) define the duties of the Board after the registrant has appeared before it, and by their terms require that the local Board '- shall again classify the registrant in the same manner as if he had never before been classified', and shall thereafter mail to the registrant a notice of such classification.
The factual question here is whether or not the local Board performed its duties as indicated in the above regulations as they then existed. It is fair to say that no new evidence or information was offered or given by any of the three defendants. They were ready to argue that they were improperly classified by reason of their religious belief, and were ready to submit additional writings pertaining to the doctrines of their sect. They each testified that the spokesman for the Board advised them that the hands of the Board were tied, and in substance, that each classification would remain unchanged unless new evidence were submitted. An examination of the file in each case indicates a notation dated '2/28/51' on the back of each questionaire to the effect that there was no change in classification. On the inside of the outside cover of each file there is the notation '2/28/51 appd. before bd. No change in classification. CGC HCW AB SLT' (the initials of the members of the Board). The initials 'SLT' do not appear on the last mentioned notation in the file of Howard Graham.
A memo dated February 28, 1951, signed by the acting chairman of the Board, is found in each file and is quoted in part below:
'Registrant presented no new evidence at this hearing and was advised by the board that his classification would remain Class 1-A in accordance with the unanimous vote of all board members present.'
There is no other record of any vote or any other action constituting a classification anew, as required by the Regulations.
The oral testimony of the acting chairman of the Board, called as a witness by the government, disposes of any uncertainty arising from the notations above referred to. Upon cross-examination as to the action of the Board on the occasion of the appearance of ...