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178
F.2d 38
(Cite
as: 178 F.2d 38)
United
States Court of Appeals,
Sixth
Circuit.
GARA
v.
UNITED
STATES.
No.
10917.
Nov. 28, 1949.
Larry
Gara was convicted in the District Court for the Northern
District of Ohio, Western Division, Frank LeBlond Kloeb,
J., of knowingly counseling and aiding and abetting another
to refuse or evade the registration required by the Selective
Service Act of 1948, and he appealed.
The Court of Appeals, Allen, Circuit Judge, affirmed the
judgment, holding that defendant was properly found guilty
although the person he told not to permit himself to be
coerced into registering had previously refused to register,
and that the act was constitutional.
West
Headnotes
[1]Armed
Services 20.6(2)
34k20.6(2)
Most Cited Cases
Where Selective Service Act authorized the President to
fix the time of registration, a regulation promulgated by
President providing that duty to register continued at all
times was not invalid as enlarging the statute. Selective
Service Act, § 1 et seq., 50 U.S.C.A.Appendix, § 451 et
seq.
[2]
Armed Services 40.1(2)
34k40.1(2)
Most Cited Cases
Where defendant told another who was being arrested not
to be coerced into registering for the draft as required
under Selective Service Act, and where arrested person refused
by his actions to register, defendant was guilty of knowingly
counseling and aiding and abetting arrested person to refuse
or evade required registration, notwithstanding the arrested
person had previously refused to register, since duty to
register continued, and notwithstanding arrested person
did not by words refuse to register. Selective Service Act,
§§ 1 et seq., 3, 12(a), 50 U.S.C.A.Appendix, §§ 451 et seq.,
453, 462(a).
[3]
Armed Services 40.1(7)
34k40.1(7)
Most Cited Cases
Fact that defendant sincerely believed that his Christian
duty required him to oppose registration for draft as required
by Selective Service Act did not absolve him from his violation
of the act by knowingly counseling and aiding and abetting
another to refuse or evade the registration. Selective Service
Act, §§ 1 et seq., 3, 12(a), 50 U.S.C.A.Appendix, §§ 451
et seq., 453, 462(a).
[4]
Constitutional Law 84.5(1)
92k84.5(1)
Most Cited Cases
(Formerly
92k84)
The guaranty of freedom of religion in the Bill of Rights
is not a guaranty of immunity for violation of law.
[5]
Armed Services 40.1(2)
34k40.1(2)
Most Cited Cases
In
prosecution for knowingly counseling and aiding and abetting
another to refuse or evade the registration required by
the Selective Service Act, whether defendant was successful
in dissuading such other person from registering and whether
defendant made a practice of counseling only those who were
inwardly fixed in their conscience to refuse to register
was immaterial. Selective Service Act, §§ 1 et seq., 3,
12(a), 50 U.S.C.A.Appendix, §§ 451 et seq., 453, 462(a).
[6]
Armed Forces 40.1(2)
34k40.1(2)
Most Cited Cases
In prosecution for knowingly counseling and aiding and abetting
another to refuse or evade the registration required by
the Selective Service Act, proof that defendant actually
brought about refusal of such other person to register was
unnecessary if defendant's words were used in such circumstances
and were of such a nature that they would have a tendency
to cause the other person to refuse to register. Selective
Service Act, §§ 1 et seq., 3, 12(a), 50 U.S.C.A.Appendix,
§§ 451 et seq., 453, 462(a).
[7]
Armed Services 40.1(2)
34k40.1(2)
Most Cited Cases
[7]
Constitutional Law 90.1 (2)
92k90.1(2)
Most Cited Cases
(Formerly
92k90)
Provision of Selective Service Act prohibiting the knowingly
counseling and aiding and abetting another to refuse or
evade the required registration for draft is not unconstitutional
as restricting the right of free speech. Selective Service
Act, §§ 1 et seq., 12(a), 50 U.S.C.A.Appendix, §§ 451 et
seq., 462(a).
[8]
Constitutional Law 70.3(1)
92k70.3(1)
Most Cited Cases
(Formerly
92k70.3(14), 92k70(3))
Congress
was the judge as to whether a clear and present danger existed
requiring the enactment of Selective Service Act of 1948.
Selective Service Act, § 1 et seq., 50 U.S.C.A.Appendix,
§ 451 et seq.
[9]
Criminal Law 304(1)
110k304(1)
Most Cited Cases
Court of Appeals would take judicial notice of the existence
of the so-called "cold war" which necessitated enactment
of the Selective Service Act of 1948. Selective Service
Act, § 1 et seq., 50 U.S.C.A. App. § 451 et seq. *39 Francis
Heisler, Chicago, Ill., and Stanley U. Robinson, Jr., Columbus,
Ohio (Francis Heisler, Chicago, Ill., Stanley U. Robinson,
Columbus, Ohio, on the brief), for appellant.
Gerald P. Openlander, Toledo, Ohio (Don C. Miller, Cleveland,
Ophio, Gerald P. Openlander, Toledo, Ohio, on the brief),
for appellee.
Milton Farber, Columbus, Ohio, Harry J. Tischbein, Jr.,
Cincinnati, Ohio, Emanuel Redfield, New York City, for American
Civil Liberties Union, amicus curiae.
ALLEN,
Circuit Judge.
Appellant
attacks a judgment rendered on a verdict finding him guilty
under Title 50 U.S.C.A.App., § 462(a), 50 U.S.C.A.Appendix,
§ 462(a) [FN1] of knowingly counseling and aiding and abetting
one Charles Ray Rickert to refuse or evade the registration
required by the Selective Service Act of 1948, Title 50
U.S.C.App., § 451 et seq., 50 U.S.C.A.Appendix, § 451 et
seq. Section 453, the registration section, in its material
portions reads as follows: 'Except as otherwise provided
in this title * * * , it shall be the duty of every male
citizen of the United States, and every other male person
residing in the United States, who, on the day or days fixed
for the first or any subsequent registration, is between
the ages of eighteen and twenty-six, to present himself
for and submit to registration at such time or times and
place or places, and in such manner, as shall be determined
by proclamation of the President and by rules and regulations
prescribed hereunder.'
Section 453 must be read in conjunction with § 611.6(d)
of the Regulations promulgated by the President on July
20, 1948, in Executive Order 9979. The Regulation provides:
'(d) The duty of every person subject to registration shall
continue at all times, and if for any reason any such person
is not registered on the day or one of the days fixed for
his registration, he shall immediately present himself for
and submit to registration before the local board in the
area where he happens to be.
'
Rickert first refused to register on September 10, 1948.
On November 8, 1948 he was arrested on the campus of Bluffton
College, Bluffton, Ohio, where he was a student. Appellant,
dean of men at Bluffton College, had himself refused to
register in the First World War and considered it his religious
duty to oppose all forms of cooperation with war. He was
present when Rickert was arrested. Government witnesses
testified, among other things, that appellant said to Rickert
at that time, 'Do not let them coerce you into registering.'
Appellant states that he said, 'do not let them coerce you
into changing your conscience; your mind, it may have been;
I don't know exactly.' It was also shown that on November
8, 1948, appellant and his wife addressed a letter to the
'Federal District Attorney' at Toledo, Ohio, which in part
reads as follows: 'We have just learned of the arrest of
Charles Rickert, a student at Bluffton College who, as a
conscientious objector to war and conscription has refused
to register for the draft. We have been very much concerned
about the imprisonment of young war objectors. It especially
concerns us since we would also refuse to register for the
draft if we were *40 asked to do so. We have openly urged
young men to take this position and shall do all in our
power to further the cause of civil disobedience to conscription
in this country. If men like Charles are guilty then we,
too, are guilty for we have advocated disobedience to the
law and have supported men who take this position.'
Similar letters were addressed by appellant about this time
to the Attorney General of the United States and to the
District Attorney at Chicago.
Appellant
also signed a pledge in 1948, stating, 'I shall in every
way possible assist and support Non-registrants.' Evidence
was presented to the effect that at a meeting held in Reading,
Pennsylvania on August 25, 1948, he advocated that men of
draft age refuse to register under the Selective Service
Act of 1948, and later stated, 'In making this speech I
intended to violate the Selective Service Act.
'
Since Rickert, at the time of his arrest, did not in words
decline to register on November 8th, it is contended that
his offense was complete on September 10, 1948. Appellant
therefore urges that his advice on November 8th that Rickert
should not permit himself to be coerced into changing his
mind, could not affect Rickert's action nor constitute a
violation of the statute; that the indictment does not properly
charge the offense, and that the evidence does not sustain
the conviction.
[1][2] These contentions are untenable. Rickert's failure
to perform his obligation to register constituted a completed
offense on September 10th, but it was repeated on every
day thereafter during the period involved herein, for he
was under a continuing duty to register. Regulation 611.6(d),
above quoted, establishes this duty. Since § 453 authorizes
the President to fix the 'time or times' of registration
the statute is not, as contended, enlarged by the Regulations.
Section 611.6(d), since in conforms to the express provision
of § 453, is valid. It follows that Rickert on November
8, 1948, was under the obligation to register. He refused
by his actions, although not by express words, to fulfill
this obligation, and appellant encouraged him in so doing.
The indictment specifically charged the offense as of that
day, and the charge was proved by substantial evidence
[3][4].
The fact that appellant sincerely believed that it was his
Christian duty to oppose registration does not absolve him
from his violation of the statute. The rights of religion
are not beyond limitation. Davis v. Beason, 133 U.S. 333,
10 S.Ct. 299, 33 L.Ed. 637; Prince v. Massachusetts, 321
U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645. The guaranty
of freedom of religion in the Bill of Rights is not a guaranty
of immunity for violation of law. Baxley v. United States,
4 Cir., 134 F.2d 937; Reynolds v. United States, 98 U.S.
145, 25 L.Ed. 244. It is to be observed that § 456(j) of
the Selective Service Act makes adequate provision for the
protection of persons who by reason of religious training
and belief are conscientiously opposed to participation
in war, in any form; but they are required to register in
order to claim exemption from combat duty or from non-combatant
service.
[5][6]The
District Court did not err in charging that it was immaterial
whether appellant succeeded in dissuading Rickert from registering.
Ever since the decision in Schenck v. United States, 249
U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, it has been
the law that where an attempt to obstruct military service,
as well as actual obstruction, is penalized by statute,
there is 'no ground for saying that success alone warrants
making the act a crime.' It is immaterial, also whether
appellant did or did not make a practice, as he contends,
of counseling only those who were 'inwardly fixed' in their
conscience to refuse to register. Under § 462, the gist
of the crime is the counseling, aiding or abetting the violation,
and not the result.
Also the District Court properly charged that it was not
necessary to prove that appellant actually brought about
Rickert's violation of the statute if his words were used
in such circumstances and were of such a nature that the
would have a tendency to cause Rickert to refuse to register.
Butler v. United States, 7 Cir., 138 F.2d 977; United States
v. Pelley, 7 Cir., 132 F.2d 177.
*41[7][8][9]
Nor do we think that appellant's argument that the Selective
Service Act violates his constitutional right of free speech
on the ground that it restricts freedom of speech and that
there is no clear and present danger, Cf. Terminiello v.
Chicago, 337 U.S. 1, 69 S.Ct. 894, justifying such restriction,
can be sustained. The cited case involved an ordinance which
as construed by the trial court directly invaded freedom
of speech. The Selective Service Act does not even purport
to enter the field of restriction of speech or of publication.
On the question whether a clear and present danger existed,
requiring the enactment of the statute, the Congress is
the judge. It has the obligation, under the Federal Constitution,
of providing for the common defense. In the preamble to
the Selective Service Act of 1948, under the congressional
declaration of policy it is stated 'The Congress * * * declares
that an adequate armed strength must be achieved and maintained
to insure the security of this Nation.' We take judicial
notice of the existence of the so-called 'cold war' which
in the view of the Congress necessitated this peacetime
draft.
The
vital consideration which compels us to overrule appellant's
contention on this point is that § 462 forbids any person
to counsel others to violate a statute which neither affects
nor relates to freedom of speech or opinion. Section 453,
the provision immediately involved here, simply establishes
the duty of registering. It is self-evident that violation
of Sec. 462, particularly as to aiding and abetting, might
be consummated without any expression of opinion. Even counseling
not to register, which would constitute a verbal act, might
on many occasions not involve an expression of opinion with
reference to the Selective Service Act. The problem presented
here arises out of the fact that appellant, in addition
to counseling Rickert not to fulfill his continuing duty
to register, expressed opinions as to the propriety of the
law and the policy of a peacetime draft. If uttered under
other circumstances these views might well have been protected
by the First Amendment. Appellant could freely oppose the
Selective Service Act both in public and private, in peacetime,
and in wartime, Cf. Taylor v. Mississippi, 319 U.S. 583,
63 S.Ct. 1200, 87 L.Ed. 1600, and demand its repeal. Therefore
appellant contends that since his counseling of Rickert
was based on conscientious opposition to the law, and expressed
opinion was part of the basis of his admonition to Rickert,
he can not be found guilty as charged.
It is true that the trend of former decisions penalizing
opposition to policies of the Government has been greatly
modified in recent years. See Gilbert v. Minnesota, 254
U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287; United States v. Schwimmer,
279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; Minersville School
District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed.
1375, 127 A.L.R. 1493, as compared with Schneider v. State,
308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Taylor v. Mississippi,
supra; Terminiello v. Chicago, supra; Girouard v. United
States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084. But the
decisions relied on by appellant do not arise out of cases
where the accused counseled others to commit violations
of express law, the counseling being also expressly forbidden
by statute. No decision has been handed down by the Supreme
Court holding that violation of an express statute enacted
by Congress in the exercise of its constitutional power
to provide for the common defense is excused under the First
amendment because the acts of violation are consummated,
as counseling always must be, through the medium of words.
The case argued by appellant in many ways is based upon
a different set of facts from those presented here. We do
not have a mere attempt on appellant's part to comfort or
give moral support to some one who is paying the penalty
for his refusal to register. Here appellant admits that
he agreed in every way possible to assist and support non-registrants.
At an open meeting he advocated refusal to register. His
repeated letters state that he counseled men of draft age
to refuse registration. Such actions, if carried out extensively,
might well nullify the law. Appellant may attack the Selective
Service Act of 1948 from every platform in America with
impunity, *42 but he cannot, under the guise of free speech,
nullify it by disobedience to its express provisions.
We conclude that the statute is constitutional, and in this
case constitutionally applied.
The judgment is affirmed.
FN1.
Section 462(a). 'Any * * * person * * * who knowingly
counsels, aids, or abets another to refuse or evade
registration or service in the armed forces or any of
the requirements of this title * * * shall, upon conviction
* * * be punished by imprisonment * * * or a fine *
* * or by both such fine and imprisonment * * * .'
C.A.6 1950.
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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