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United States v. Porter

March 14, 1963

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DONALD DENNIS PORTER, DEFENDANT-APPELLANT.



Author: Schnackenberg

Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Donald Dennis Porter, defendant, has appealed from a judgment of the district court, based on a finding of guilty of the offense of failure to report for induction under 50 U.S.C.A.Appendix, § 462(a), as charged in an indictment.

In seeking a reversal of his conviction, he argues that he presented a prima facie case to his local draft board for a conscientious objector's classification and that the agency file contains no evidence to rebut his claim and none exists. He also argues that he was deprived of any consideration by the local board of his claim and evidence and that he was also deprived of the administrative appellate review provided by law.

On his standard classification questionnaire, filed December 29, 1954, he did not indicate in any manner that he was a conscientious objector to participation in war or to any form of military training. He showed he was a full time high school student and that he was "preparing for a business of some type." On January 17, 1955 he was classified in class 1-A (available for military service).

On October 15, 1959, Indiana Local Board 170 mailed to defendant SSS Form 252, Order to Report for Induction. Upon receipt of this form defendant applied on November 9, 1959, to be transferred to a local board in Washington, D.C., where he was employed as an entertainer. He was so transferred, and on January 6, 1960, he was ordered to report for induction purposes to the Washington, D.C. local board on January 26, 1960. He did not report for induction as ordered, and during January 1960 reported to Indiana Local Board 170 that he had returned to its jurisdiction. On August 1, 1960, defendant was given notice to report to Indiana Local Board 170 on $August 9, 1960, for the purpose of induction.

On August 8, 1960, defendant requested by letter the Special Form for Conscientious Objectors (SSS Form 150) from Indiana Local Board 170, and advised the board that he was a conscientious objector.

On August 9, 1960, defendant reported to the office of Indiana Local Board 170, but refused to proceed from there, as instructed by the clerk of said board, to an induction center for induction. While present at the office of Board 170 on that date, defendant wrote the following statement and left it with the clerk of the board:

August 9, 1960. "Because of my religious beliefs, I refuse to go be inducted into the Military Service, I did however comply with the command to report."

Donald Porter.

Defendant was indicted under Title 50 U.S.C.A.Appendix, § 462(a) for refusing to submit to induction. His trial and conviction followed.

We considered a similar situation in United States v. Schoebel, 7 Cir., 201 F.2d 31 (1953). The facts in that case were as follows:

"* * * On May 1, 1951, the draft board mailed defendant a notice to report for induction on May 14, 1951. On May 8, 1951, for the first time defendant made claim to the board that he was a conscientious objector. The Board considered his claim, but by a vote of three to nothing refused to reopen his classification. On May 14, 1951, defendant reported for induction, as ordered, but refused to step forward and take the oath. Defendant admits he refused to be inducted.

"Defendant claims that he was ordained a minister and baptized by Jehovah's Witnesses sometime in May, 1951; also that he gave up his job in the shoe factory which paid him $100 a week and is presently engaged ...


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