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UNITED STATES v. SHAW

December 1, 1953

UNITED STATES
v.
SHAW



The opinion of the court was delivered by: KNIGHT

KNIGHT, Chief Judge.

Defendant has filed a petition to set aside the judgment of his conviction on a plea of guilty to an indictment for violation of Title 50 U.S.C.A.Appendix, § 462(a) and for leave to withdraw his plea of guilty thereto.

 From the petition it appears that defendant was charged with violation of Title 50 U.S.C.A.Appendix, § 462(a) in that he failed to report on January 8, 1951, for induction into the military services of the United States as ordered by Local Board No. 78, Lafayette, Indiana; that he was brought before this Court, entered a plea of guilty and sentenced to be committed for a period of two years in an institution thereafter designated to be the Federal Correctional Institute, Danbury, Connecticut.

 The defendant was born in Peiping, China, on December 5, 1924, and is a citizen of the United States.

 It further appears that on or about September 15, 1948, defendant filed his Selective Service Classification Questionnaire (SSS Form 100) with the Local Board No. 78 at Lafayette, Indiana, which Form set forth that date of his birth as December 5, 1924; that the Local Board on or about December 21, 1950, mailed its order for defendant to report for induction on January 8, 1951; that defendant because of his religious objections to war, refused to be inducted and the matter was thereafter referred to the United States Attorney for the District, who presented the facts to the proper Grand Jury; that a true Bill against defendant was found by the Grand Jury, whereupon defendant was arrested, plead to the indictment, was convicted, sentenced and has served the sentence imposed.

 After completion of his sentence, defendant learned that he should never have been indicted, arraigned, plead and sentenced for the reason that he had attained the age of twenty-six years prior to the issuance of the order for induction and had not consented to induction. 50 U.S.C.A.Appendix, §§ 454, 466.

 The matter comes to this Court practically as a writ of error coram nobis. Defendant includes in his petition an excuse for having entered a plea of guilty by reason of his failure to know his right to counsel; that he had no advice of counsel; that he informed the United States Attorney and a court employe of his age but that they either did not know the draft age limitation or declined to advise defendant with respect thereto, so that defendant believed his only recourse was to 'throw himself on the mercy of the Court.' Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461.

 Defendant now suffers from the judgment improperly obtained. The conviction which he suffered was not in accordance with law. He has served his sentence, but to dismiss defendant's petition as moot would not square with our standards. Fiswick v. United States, 329 U.S. 211, 67 S. Ct. 224, 91 L. Ed. 196.

 Defendant's motion is granted. Present order in accordance herewith.

 On Reconsideration

 KNIGHT, Chief Judge.

 After filing my opinion in this case on December 1, 1953, the Assistant United States Attorney orally asked leave to present further data and his request was granted.

 The Government, after having made oral objections, handed me a copy of a letter addressed to the Department of Justice, Criminal Division, dated December 21, 1953, as follows:

 'The above defendant was sentenced July 9, 1951 to two years in confinement for violation of the Selective Service Law by refusal to report for induction. He has now served his term and files the enclosed petition to ...


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