Appeal from the District Court of the United States for the Western District of Wisconsin; Patrick T. Stone, Judge.
Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.
The defendant was indicted and convicted for failing to report for induction to his Selective Service Board at Wisconsin Rapids, Wisconsin, on September 21, 1943, as ordered by the Board.
The defendant registered July 1, 1941, stating that he was twenty-one years old. In his Selective Service questionnaire he stated that he had completed eight years of elementary school and gave his occupation as "helper on broke beater" in a paper mill. He then stated:
"I am a minister of religion. * * * I have been a minister of the Jehovah's Witnesses since I agreed to do the Will of God. I have been formally ordained. If so, my ordination was performed on see Isaiah 61:1, 2."
On August 28, 1941, the Board classified the defendant as a minister, IV-D, and granted him exemption. The defendant made his living at that time working in the paper mill, and in his spare time he called on people discussing his religion, distributing literature, and organizing Bible study classes. Thereafter, at the request of the State Coordinator of Selective Service, the Local Board reconsidered his case and on May 27, 1943, reclassified him as 1-A. He was notified of this reclassification. On June 7, 1943, he appealed to the Appeal Board, and by unanimous vote the Appeal Board classified him 1-A. After his reclassification, he quit working in the paper mill and began devoting all of his time to his claimed ministerial duties.
On July 10, 1943, and again on September 8, 1943, the defendant was notified that he was then classified as 1-A. On September 11, 1943, the Board notified him by mail to report for his induction to his Board in Wisconsin Rapids on September 21, 1943, at 12:15 p.m. He was also notified to report for a final type physical examination at the same date, time, and place as required by the other notice. This was sent by the Board in anticipation that he might wish to claim that he was a conscientious objector. If he should have, the Board was prepared to accommodate him. However, he had never been classified as a conscientious objector. The defendant received the notices in ample time to have reported, but he did not report. On September 21, 1943, a notice of delinquency was sent to the defendant. To this he replied by a letter in which he took the position that he was a minister and that the Board had no right to reclassify him. He claimed that the Board had found and classified him once as a minister and that, as such, henceforth he was entitled to exemption.
The defendant was first indicted for failure to report for final-type physical examination. On motion of the Government, that indictment was quashed. The defendant was tried on another indictment which set out that he had registered on July 1, 1941, was subject to the jurisdiction of Local Board No. 1 for Wood County, Wisconsin Rapids, Wisconsin, was duly classified and was on September 11, 1943, ordered by the Board to report on September 21, 1943, at a certain time and place. It charged that he knowingly, wilfully, and intentionally failed and refused to report.
The defendant tested the sufficiency of the indictment by a motion to quash, which was overruled. At the conclusion of all of the evidence, he made a motion for a directed verdict, which the court overruled. The jury found the defendant guilty and the court pronounced judgment upon the verdict.
The defendant on this appeal contends that the Board had no jurisdiction to reclassify him as 1-A after having once classified him as a minister and exempted him as a minister, that the indictment was insufficient, the conduct of the court prejudicial, and that certain evidence was improperly excluded.
The Selective Service and Training Act provides under Section 5(d), 50 U.S.C.A. Appendix, § 305(d), that "Regular or duly ordained ministers of religion * * * shall be exempt from training and service (but not from registration) under this Act". The Act further provides in Section 10(a)(2), 50 U.S.C.A. Appendix, § 310(a)(2):
" * * * local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to here and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe.* * * "
Pursuant to the authority of the Act, the President, through appropriate agencies, has promulgated rules and regulations for the guidance of the Local Boards. ...