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United States v. Schachtrup.

February 9, 1944

UNITED STATES
v.
SCHACHTRUP.



Appeal from the District Court of the United States for the Southern District of Illinois, Northern Division; J. Leroy Adair, Judge.

Author: Minton

Before EVANS, KERNER, and MINTON, Circuit judges.

MINTON, Circuit Judge.

The defendant-appellant, Herman J. Schachtrup, appeals from a judgment of the United States District Court for the Southern District of Illinois, Northern Division, entered upon a jury verdict which found that he and his son, Francis Bernard Schachtrup, had conspired to evade the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix ยง 311.

The indictment in the fifth count charged the appellant and his son with conspiring to obtain for the son a deferred classification as a farmer by means of false and fraudulent representations to the Draft Board concerning the skill and experience of the son as a farmer. A demurrer to the indictment was overruled as to this count. At the conclusion of all of the evidence, the appellant filed a separate motion for a directed verdict, which the court took under advisement. After the case had been submitted to the jury and a verdict of guilty returned, the court overruled the motion.

The appellant has assigned and urged chiefly as errors the insufficiency of the indictment, the insufficiency of the evidence to support the verdict, the improper admission of evidence, and a certain instruction to the jury. We lay to one side the consideration of all questions except the alleged insufficiency of the evidence to sustain the verdict of the jury.

In our examination of this record, we have recognized the elementary rule that if there is any evidence, viewing it most favorably to the Government, to support the verdict, we must affirm. We have examined this record carefully, and we find no evidence to sustain the verdict of the jury. Viewing the evidence most favorably to the Government, we gather from the record the following facts:

The appellant owned and operated a barber college in Peoria, Illinois. In addition, he owned and oprated through various tenants several good-sized farms in the same community. Francis was his only son, and the appellant had always cherished the hope that Francis would become a farmer. While Francis was still in high school and long before the events alleged in the indictment took place, the appellant took him to a prominent lawyer in Peoria to get advice about his future career; and the lawyer advised Francis then that since he was the only son of the appellant and would eventually inherit the farms, he should become a farmer. Francis was not keen about farming, but at the time preferred to play baseball. Later, but while still in high school, he began to prepare himself for the barber trade by enrolling as a student barber in his father's barber college where he worked after school, on Saturdays, and during vacations. Over a two-year period, 1941 and 1942, this training totalled 1,480 hours. His father once made arrangements for him to work in a barber shop in a nearby small town and had the neighboring barber sign Francis' application for an apprentice card.

After graduation from high school in June of 1942, Francis became a full time student at his father's barber college, and it was during this period that he filled out the firt occupational questionnaire and filed it with the Draft Board on or about August 14, 1942. He represented that he was a high school graduate and a full time student in the barber college and that the date when he expected to complete this course was indefinite.

Francis continued to work in the barber college until September of 1942, when, at his father's suggestion and that of other members of his family, he enrolled as an agricultural student at the University of Illinois. However, following the counsel of a professor at the University who had suggested that young men with farms should return home to operate them rather than remain at the University, he left the University in October of 1942, against the wishes of his father. Upon his return home, his father told him that he had spent enough money on him at the University and that he wanted him to go back, but, if he would not go back, then he would have to go down on the farm and go to work. Accordingly, Francis went to live with John Stadsholt, a tenant on a 196-acre farm, part of 344 acres which the appellant and his wife had contracted to sell to Francis at the time of his graduation from high school. This 196-acre farm was adjacent to one occupied by a tenant named Ben Lindaur, who was moving off in March, 1943. Francis and Stadsholt planned to operate both farms as soon as Lindaur should leave. In November, 1942, the mother and aunt of Francis appointed him to take care of their farms and act as supervisor thereof. The aunt told the tenants on the farms that if the F.B.I. or any (other) Government men came around asking questions, she and Francis' mother wanted the tenants to say that Francis was managing the farms.

On November 18, 1942, Francis filed a second Selective Service questionnaire with the Draft Board. This was filled out for him by an attorney who was an associate member of the Advisory Committee of Peoria County, whose purpose is to help Selective Service registrants fill out their questionnaires. In this questionnaire, Francis represented that he had had four years' experience in farming covering a period of the last seven or eight years; that his average annual earnings were undetermined but could be estimated at approximately three thousand dollars; and that he owned the farm he was working on. He set forth in detail the acres under cultivation and the amount of livestock. After the filing of this affidavit, the Board classified Francis as 1-A.

There is no evidence that the appellant had anything to do with making out the questionnaires filed by Francis with the Draft Board.

After Francis had been classified 1-A by the Draft Board, he went to three of his father's tenants and obtained letters from them, which he presented to the Draft Board. Copies of these letters, omitting the formal parts and signatures, are set forth in the margin.*fn1 There is no evidence that the appellant had anything to do with the procurement or the writing of these letters. In fact, the only evidence in the record is to the effect that he knew nothing about them and had nothing to do with their procurement or writing.

On January 7, 1943, Francis filed an application for a deferred classification. This application was prepared for him by attorney Dougherty, in his capacity as a member of the Advisory Committee. There is no evidence that the appellant knew anything about it. After the preparation of the application, Francis requested Dougherty to appear with him before the Draft Board, but he was advised by Dougherty that that was not permissible. Francis thereupon ...


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