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November 21, 1972

Michael Anthony MOORE, Defendant

Brieant, District Judge.

The opinion of the court was delivered by: BRIEANT

BRIEANT, District Judge.

By indictment filed April 17, 1972, defendant Michael Anthony Moore was charged in two counts with failure to perform a duty required of him under and in execution of the Military Selective Service Act of 1967, 50 U.S.C. App. ┬ž 451 et seq.

 By Count Two, defendant was charged, on or about the 19th day of November, 1970, up to and including the date of the filing of the indictment, with a failure to report for induction into the Armed Forces of the United States, as directed by an order of his Local Board.

 Defendant pleaded not guilty, and waived trial by jury. The cause was tried before me on July 17, 1972. Decision was reserved and defendant continued on bail.

 On defendant's June 3rd questionaire, Form 127 Exhibit 1F, in answer to an inquiry reading "If you have any physical or mental condition which in your opinion will disqualify you for service in the Armed Forces state the condition and submit a physician's statement, if you have one, with this form or submit such a statement at a later date", defendant responded: "Aversion to political and military institutions." (Emphasis in original.) He made no further explanation and did not assert that he was a conscientious objector to all wars.

 Defense asks that the Court take notice of the fact that in order to obtain a conscientious objector classification and consequent exemption from the draft, defendant would have to fill in Form 150 as provided by the regulations, and that "by applying for conscientious objector status through a Local Board and getting that status granted, another man will be drafted in this person's place, and that is some kind of complicity with the Selective Service System which certain people who are conscientious objectors cannot tolerate" (tr. p. 19).

 If this is true, the same objection would seem to apply in the factual circumstances of one who, as this defendant did, applies for a student deferment. The result of applying for a student deferment is indistinguishable, factually and philosophically, from applying for a conscientious objector deferment. In either case, statistically, the effect will be the same, namely, sending someone else in his place.

 I find that this defendant, as evidenced by his act in applying for and receiving a student deferment, possesses no such mystique of conscience which prevents him from applying for and accepting a conscientious objector status.

 Upon his arrest, defendant informed the federal officer who arrested him that he did not believe in conscription, and made the additional statement that his philosophical reasons for this belief were not important at that time.

 Mrs. Sherrill Moore, defendant's mother, testified, and I find, that defendant "is very much against war . . . feels as though there should be no [national] boundary lines . . . people are the same all over the world." Defendant believes that "he has no reason to kill and is against being drafted into the military because no one has done anything to him or to his mother or to anyone else, and that it is wrong under such circumstances to kill." She stated that these beliefs had been long held by defendant, and that when he was a child in school "he would never fight just for the sake of fighting, get into fist fights. I believe he was brought up to feel that way."

 Implicit in these quoted statements of defendant's state of mind, is the conclusion that if someone had done something to him, or to his mother or to someone else, there might be a reason to kill. Such a state of mind is that of a "selective" conscientious objector, and not that of a conscientious objector to all wars, as defined in the statute.

 Defendant testified, and I find, that he believes that the wilful act of killing is "insane" and that it is "the most negative use of energy ever conceived of". He indicates a philosophical belief that the nation has no power over him, other than those powers which he has given it, and accordingly will under no circumstances "be conscripted into an Armed Force". He says that he never gave the Selective Service System the right, nor would he do so, of "approval of my actions or behavior", and indicated that he feels that "obliging the Selective Service System and its related institutions is hazardous to one's physical and mental health." He further states, "I feel that our county is an abstraction. However, if anyone I love, or have personal contact with were injured and that injury couldn't be undone -- I would seek a way to rectify the injustice. I conscientiously object to the fact that all too often the 'state forgets' that it's people who give the state its rights and powers and not the state that gives the people rights. As for the concept of conflict, on whatever level, I, as an individual, will choose, if any, which conflicts I choose to engage and on whatever level." Here again, we find a suggestion that there are or might be conflicts which he would "choose to engage". This is selective conscientious objection.

 Defendant, in sum, urges that because of his personal philosophy, deeply held, which might be characterized as a highly individualistic adherence to some sort of personal Social Contract, he lacks sufficient criminal intent to commit the crime as charged. His sole intent was that he did not wish to recognize the authority of the Selective Service System to take "these actions over me" (tr. p. 27).

 Defendant testified that he was aware of the fact that Congress has provided that persons can apply to become conscientious objectors, and that ...

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