United States v. Herling

Second Circuit

United States v. Herling

120 F.2d 236, 1941 U.S. App. LEXIS 3461

CourtCourt of Appeals for the Second Circuit

DecidedJune 2, 1941

Docket319-323

StatusPublished

Cited by20 cases

This text of 120 F.2d 236 (United States v. Herling) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Herling, 120 F.2d 236, 1941 U.S. App. LEXIS 3461 (2d Cir. 1941).

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Opinion

PER CURIAM.

The validity of the Selective Training and Service Act of 1940, § 1 et seq., 50 U.S.C.A. Appendix, § 301 et seq., and the regulations thereunder, is clear under the decisions sustaining similar legislation of 1917, 50 U.S.C.A. Appendix, § 201 et seq. Selective Draft Law Cases, 245 U. S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann.Cas.l918B, 856; Cox v. Wood, 247 U.S. 3, 38 S.Ct. 421, 62 L.Ed. 947; Hamilton v. Regents of the University of California, 293 U.S. 245, 262, 55 S.Ct. 197, 79 L.Ed. 343; United States ex rel. Bergdoll v. Drum, 2 Cir., 107 F.2d 897, 129 A.L.R. 1165, certiorari denied 310 U.S. 648, 60 S.Ct. 1098, 84 L.Ed. 1414. To attempt a distinction because the present Act applies, though no formally declared war exists, is to import a difference which does not appear in the Constitution itself, Art. 1, Sec. 8, cl. 12, and which was definitely repudiated in the cited cases. Coqapare the well-reasoned opinions of Bondy, D. J., in ruling on demurrers to the indictments herein, United States v. Rappeport, D.C.S.D.N.Y., 36 F.Supp. 915, and of Fee, D. J., in Stone v. Christensen, D.C.Or., 36 F.Supp. 739. The indictments were adequate to give fair notice of the crime charged, Ruthenberg v. United States, 245 U.S. 480, 483, 38 S.Ct. 168, 62 L.Ed. 414; there was no reason for a continuance to procure evidence as to an emergency vel non, since that was ir *237 relevant to the validity of the law; and the trials of those accused who did not eventually plead guilty were as fair and adequate as possible under the circumstances of obstruction which the accused felt themselves obliged to present. Indeed, appellants’ guilt was indisputable once the Act was found valid.

Affirmed.

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PER CURIAM.

The validity of the Selective Training and Service Act of 1940, § 1 et seq., 50 U.S.C.A. Appendix, § 301 et seq., and the regulations thereunder, is clear under the decisions sustaining similar legislation of 1917, 50 U.S.C.A. Appendix, § 201 et seq. Selective Draft Law Cases, 245 U. S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann.Cas.l918B, 856; Cox v. Wood, 247 U.S. 3, 38 S.Ct. 421, 62 L.Ed. 947; Hamilton v. Regents of the University of California, 293 U.S. 245, 262, 55 S.Ct. 197, 79 L.Ed. 343; United States ex rel. Bergdoll v. Drum, 2 Cir., 107 F.2d 897, 129 A.L.R. 1165, certiorari denied 310 U.S. 648, 60 S.Ct. 1098, 84 L.Ed. 1414. To attempt a distinction because the present Act applies, though no formally declared war exists, is to import a difference which does not appear in the Constitution itself, Art. 1, Sec. 8, cl. 12, and which was definitely repudiated in the cited cases. Coqapare the well-reasoned opinions of Bondy, D. J., in ruling on demurrers to the indictments herein, United States v. Rappeport, D.C.S.D.N.Y., 36 F.Supp. 915, and of Fee, D. J., in Stone v. Christensen, D.C.Or., 36 F.Supp. 739. The indictments were adequate to give fair notice of the crime charged, Ruthenberg v. United States, 245 U.S. 480, 483, 38 S.Ct. 168, 62 L.Ed. 414; there was no reason for a continuance to procure evidence as to an emergency vel non, since that was ir *237 relevant to the validity of the law; and the trials of those accused who did not eventually plead guilty were as fair and adequate as possible under the circumstances of obstruction which the accused felt themselves obliged to present. Indeed, appellants’ guilt was indisputable once the Act was found valid.

Affirmed.

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120 F.2d 236, 1941 U.S. App. LEXIS 3461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-herling-ca2-1941.

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