430 F2d 1316 United States v. Kolster

430 F.2d 1316

UNITED STATES of America, Plaintiff, Appellee,
Daniel Henry KOLSTER, Jr., Defendant, Appellant.

No. 25367.

United States Court of Appeals, Ninth Circuit.

Aug. 17, 1970.

Carol Hughes (argued), Manzella & Flenniken, San Francisco, Cal., for defendant, appellant.

Jerry Cimmett (argued), Asst. U.S. Atty., James L. Browning, U.S. Atty., F. Steele Langford, and Jerrold M. Ladar, Asst. U.S. Atty., for plaintiff, appellee.

Before JERTBERG, DUNIWAY and TRASK, Circuit Judges.


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Kolster refused to be inducted into the armed forces, an offense under 50 U.S.C.App. 462. He had applied to his local Selective Service Board for classification as a conscientious objector, but his application was rejected both by the Local Board and by the Appeal Board. Neither board stated any reasons for its action.


In his SSS form 150 and in letters, Kolster made out a prima facie case for classification as a conscientious objector. His case is stronger than that of the appellant in Welsh v. United States, 1970, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, in that Kolster expressed belief in a Supreme Being, and based his views against war upon Christian principles. There is no evidence whatever in the record that would provide a basis in fact for a finding that Kolster's beliefs are not sincere. The government makes no claim that they are not sincere. The government's case is based upon the theory that Kolster's beliefs are political, sociological, or philosophical, or a merely personal moral code rather than religious. (50 U.S.C. App. 456(j)). Whatever support there may have been for the government's position in the decisions prior to Welsh, that support has now vanished. See also United States v. French, 9 Cir., 1970, 429 F.2d 391.