The opinion of the court was delivered by: KAUFMAN
Defendant has been indicted for violating section 12 of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 462. The indictment charges that on September 5, 1956, Frank William Erikson, after having been found fully qualified for military service, wilfully refused to take the symbolic 'one step forward' which would have constituted his induction into the Armed Forces of the United States.
The defendant claims that he is entitled to an exemption from military service because he is conscientiously opposed to war on religious grounds. Section 6 of the Act, 50 U.S.C.A.Appendix, § 456, provides that
'Nothing contained in this title (sections 451-454 and 455-471 of this Appendix) shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.'
This section provides further that if the claim to exemption is not sustained by the local board, the registrant is 'entitled to an appeal' which will include, as an integral part thereof, an inquiry and hearing conducted by the Department of Justice. The Department must then submit a recommendation to the appeal board with regard to whether or not the registrant's objections should be sustained.
The defendant contends, inter alia, that the Recommendation of the Department of Justice contained certain crucial errors of law and fact which resulted in the defendant being deprived of his right to the fair consideration of his claim that is required by the statute.
The Recommendation of the Department of Justice which was sent to the Appeal Board contained the following answers by the defendant to two questions posed by the hearing examiner:
'Q. Is your claim for deferment based not on objection to war but based upon the fact that you recognize only one government and, therefore, cannot subject yourself to the orders or commands of any other government?
'Q. You understand my question?
'A. I think I did; you mean that my life is subject to this invisible government, which is the righteous government of Jehovah God and since I am a part of that, I cannot take part in any other government.'
These answers in no way negate defendant's claim made throughout these proceedings to also being conscientiously opposed to war on religious grounds.
I have examined the transcript of the testimony before the hearing examiner, which has been marked Government's Exhibit 4, and it appears that in the very next question asked by the hearing examiner but not quoted in the Recommendations sent to the Board was the following:
'Q. And because of that you are making a claim for conscientious objection and it is not because of the fact that ...