OpenJurist

328 F2d 888 Whitney v. United States

328 F.2d 888

Roy Hancil WHITNEY, Jr., Appellant,
v.
UNITED STATES of America, Appellee.

No. 20762.

United States Court of Appeals Fifth Circuit.

March 4, 1964, Rehearing Denied March 30, 1964.

Dewey R. Villareal, Jr., Tampa, Fla., for appellant.

Arnold W. Levine, Asst. U.S. Atty., Edward F. Boardman, U.S. Atty., Tampa, Fla., Joe H. Mount, Asst. U.S. Atty., Middle District of Florida, Daniel O. Omer, General Counsel, Robert T. Hays, Asst. to General Counsel, Selective Service System, Washington, D.C., of counsel, for appellee.

Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.

PER CURIAM.

1

This is an appeal from a conviction and sentence of the appellant for knowingly and wilfully failing to perform a duty by failing to report to his draft board in Tampa, Florida, for civilian work in lieu of induction as a Selective Service registrant, in violation of Title 50, Section 462, U.S.C.A.Appendix. In light of the restricted nature of the review of such a conviction by an appellate court, see Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, there is only one point on this appeal that appears to be a matter of substance. That is the contention that there is not sufficient proof from which the jury could find beyond a reasonable doubt that appellant knowingly and wilfully failed to report. The argument is that before he could knowingly and wilfully fail to report there must be proof that he received the notice from draft board, and something of the circumstances that brought about his failure to comply therewith. The Supreme Court opinion in Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861, states:

2

'If the indictment had alleged actual delivery of the letter in question, the case for the government in this particular would have been made out by proof that the letter thus directed had been placed in the post office for transmission. The burden would then have been cast upon petitioners to show the contrary.' (P. 430 of 285 U.S., p. 419 of 52 S.Ct., 76 L.Ed. 861.)

3

This appears to be the rule in a criminal case as well as in a civil case. We think the prior statements by this appellant explaining why he would not accept assignment to civilian duties in lieu of military service, when coupled with the presumption that he received the letter, is sufficient to meet the requirement of proof that his failure to report was both knowing and wilful.

4

The Court expresses its appreciation to counsel for accepting appointment to brief and argue this appeal.

The judgment is affirmed