Fogel v. United States

162 F.2d 54, 1947 U.S. App. LEXIS 2940

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 12, 1947
• Docket: 11930
• Status: Published

Opinions

McCORD, Circuit Judge.

On January 22, 1947, an indictment was filed charging Samuel Hannah Fogel with failure to register, in violation of the Selective Training and Service Act'of 1940, 50 U.S.C.A.Appendix, § 301 et seq.¹ Fogel waived a jury trial, was tried before the court, was found guilty, and was fined $1,000.00 and sentenced to serve eighteen months in the penitentiary.

On appeal Fogel contends: (1) That the court erred in refusing to hold the prosecution was barred by the three-year statute of limitations, 18 U.S.C.A. § 582; the indictment not being found within three years from the time the offense is alleged to have been committed. (2) That the court erred in refusing to acquit the defendant for the reason that it was not shown that he was between the ages of eighteen and forty-five on or about February 16, 1942, when he was ordered to present himself for and submit to registration under the Selective Training and Service Act of 1940, as amended.

On February 16, 1942,² the .Selective Training and Service Act of 1940 was in full force and effect, and Section 3(a) of the Act, as amended, provided :

“Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States, who is between the ages of nineteen and forty-five³ at the time fixed for his registration shall be liable for training and service in the land or naval forces of the United States.”

The evidence shows without dispute that Fogel not only did not register on February 16, 1942, but that he has never registered for service in the armed forces. Fogel’s duty and obligation to register did not end on registration day, February 16, 1942. The regulations promulgated under the Act make this exceedingly clear. Section 611.5(d), Selective Service Regulations, 2d Ed., provides: “The duty of every man subject to registration to present himself for and submit to registration shall continue at all times, and if for any reason any such man is not registered on the day 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.” This regulation was notice to all persons that registration was a continuing obligation and that every day⁴ was a day for registration. The duty of Fogel to register being a continuing obligation, his failure to register was a continuing offense — an offense that continued right up to the date of the finding of the indictment. Therefore, the three-year statute of limitations did not operate to bar the prosecution.

There is no merit in the contention that the evidence was insufficient to show that Fogel was within the age group subject to registration. The evidence shows that on or about February 7, 1946, Fogel, an alien, appeared for a hearing in the office of the Naturalization Examiner at Dallas, Texas, on his application for registration as an alien. At that time he stated under oath that he was born in Poland on July 10, 1898. Again on September 12, 1946, Fogel was in the office of the Naturalization Examiner in Dallas and a number of questions were propounded. Each question was read to him and he again answered under oath, stating that he had been born on July 10, 1898.

Fogel did not take the stand in his own behalf. Ilis brother, Joseph Fogel, said that he had been instrumental in bringing Samuel to this country in 1913. (Immigration officers, however, were unable to find when and where Samuel entered this country.) Joseph further testified that Samuel was much older than the age he had given to the • Naturalization Examiner. • Joseph admitted that he had left Poland, which was under the domination of Russia, to escape military service, and his evidence was misleading and evasive in many respects. ■

The evidence was sufficient to establish appellant’s age as being within the age group subject to registration on February 16, 1942. Appellant was born in Poland, and his parents were dead. Certainly, birth records were not available. The next best evidence was his own statements made under oath to the Naturalization Examiner. These statements were in no wise confessions or admissions of guilt of the offense charged in the indictment. When these statements were made, no indictment had been returned. The statements were not made in relation to this prosecution, but were voluntarily made and sworn to by appellant at a time when he sought to obtain the protection and privileges of citizenship in this country, while he was at the same time wilfully failing and neglecting to register to serve it in its struggle for survival. The evidence warranted a finding that Fogel’s age was below forty-five years on the day fixed for registration.⁵ Cf. Zuziak v. United States, 9 Cir., 119 F.2d 140.

The prosecution was not barred by the statute of limitations. The evidence supports the conviction. No reversible error appearing, the judgment is affirmed.

1 The indictment charged: “That heretofore, to-wit, on or about the 16th day of February, A.D. 1942, one Samuel Hannah Fogel, hereinafter referred to as defendant, and whose more full and true name is to the grand jurors unknown, in Dallas County, Texas, in the Dallas Division of the Northern District of Texas, did, unlawfully, wilfully, and feloni-ously, with intent to evade induction into the land or naval forces of the United States of America, fail and neglect to register with a Selective Service Draft Board, which said act and failure to act on the part of the said defendant, as aforesaid, were in violation of the Act of Congress of the said United States, approved September 16, 3940, as amended, commonly cited as the Selective Training and Service Act of 3.940, as amended, and the Rules, orders and Regulations issued and promulgated by virtue -of and in pursuance thereto, and 1he said defendant was then and there such a person who was bounden under the provisions and requirement of said Act, Rules, Orders and Regulations to so register * *

2 By Presidential Proclamation No. 2535, February 16, 3942, 50 U.S.C.A. Appendix, § 302 note, was fixed as registration day for all persons between nineteen and forty-five years of age.

3 See 50 U.S.C.A.Appendix, § 302 providing for registration of men “between the ages of eighteen and sixty-five”.

4 Proclamation No. 2597, Oct. 26, 1943, 50 U.S.C.A.Appendix, § 302 note, 8 F.R. 14596.

5 A subsequent registration day proclamation No. 2541, issued March 19, 1942, 50 U.S.C.A.Appendix, § 302 note, provided for registration on April 27, 1942, of men from eighteen to sixty-five years of age. Attainment of the age of forty-five by Fogel after February 16, 1942, would not, therefore, have relieved him of his continuing obligation to register. And see Selective Service Regulation 611.2, “Change of Status.”