191 F2d 731 Tyrrell v. United States

191 F.2d 731


No. 12991.

United States Court of Appeals Ninth Circuit.

September 17, 1951.

Philander Brooks Beadle, Morton L. Silvers, San Francisco, Cal., for appellant.

Chauncey Tramutolo, U. S. Atty., Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and MATHEWS and STEPHENS, Circuit Judges.



The issue here for bail is whether there is a substantial question of error in the failure of the local board to incorporate in the appeal record Tyrrell's statement of the religious character of his unpaid services on a ranch owned and operated by Christ's Church of the Golden Rule. The pertinent regulation is: "Sec. 1626.13(a) Immediately upon an appeal being taken to the appeal board by a person entitled to appeal, the local board shall prepare the Individual Appeal Record * * * in duplicate, attaching the original to the inside of the registrant's Cover Sheet * * * and placing the duplicate copy in the local board files. The local board shall carefully check the registrant's file to make certain that all steps required by the regulations have been taken and that the record is complete. If any facts considered by the local board do not appear in the written information in the file, the local board shall prepare and place in the file a written summary of such facts." (Emphasis supplied.)


We think that the failure of the local board to summarize in writing Tyrrell's testimony regarding the religious character of his ranch work and to place it in the file to be used by the appeal board, presents a substantial question of error within the decisions of the Supreme Court in Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Cox v. United States, 332 U. S. 442, 68 S.Ct. 115, 92 L.Ed. 59, and of the Courts of Appeals in United States v. Zieber, 3 Cir., 161 F.2d 90; Niznik v. United States, 6 Cir., 173 F.2d 328; Smith v. United States, 4 Cir., 157 F.2d 176.


The motion for bail is granted and bail is set at $2,000.


MATHEWS, Circuit Judge, dissents.