United States v. Petrie

184 F.2d 417, 1950 U.S. App. LEXIS 3103

Opinions

JAMES ALGER FEE, District Judge.

The defendant was convicted by a jury of the crime of knowing failure to do an act required of him by the Selective Training and Service Act of 1940, SO U.S.C.A. Appendix, § 301 et seq., and the rules and regulations adopted pursuant thereto. The indictment, which follows almost word for word that considered in United States v. Lembo, 3 Cir., 184 F.2d 411, this day decided, .was tested by motion to dismiss, which was denied. It is probable that the same considerations, as to duplicity and indefiniteness of the indictment might require the same result in this case. In his instructions, the capable Trial Judge submitted all the allegations of the indictment to the jury without segregating them or finding some were not .proved, as he did in the former case. This would require remand. But the confusion as to the nature of the charge noted in the Lembo case was bewildering because here enhanced by two errors which themselves would require reversal. The instructions to the jury did not include any statement quoting or accurately giving the substance¹ of Selective Service Regulation 626.1-b. This was an error,² *****which, coupled with the nebulous verbiage of the indictment, left the jury to speculate as to the basis for a finding of guilt. Furthermore, there was no instruction that a criminal intent was required for conviction,³ to which exception was taken.

Reversed and remanded with directions to dismiss the indictment.

Footnotes

1

. The jury were not told that the registrant was required only to report a fact “that might result in such registrant being placed in a different classification.”

2

. United States v. Pincourt, 3 Cir., 159 F. 2d 917; Morris v. United States, 9 Cir., 156 F.2d 525, 169 A.L.R. 305; United States v. Max, 3 Cir., 156 F.2d 13; United States v. Noble, 3 Cir., 155 F.2d 315; United States v. Levy, 3 Cir., 153 E.2d 995.

3

. United States v. Weiss, 2 Cir., 162 F. 2d 447, 448, citing United States v. Hoffman, 2 Cir., 137 F.2d 416. Cf. Christensen v. United States, 7 Cir., 90 F.2d 152, 155; United States v. Murdock, 290 U. S. 389, 54 S.Ct. 223, 78 L.Ed. 381; Keegan v. United States, 325 U.S. 478, 494, 65 S.Ct. 1203, 89 L.Ed. 1745; Bartchy v. United States, 319 U.S. 484, 63 S.Ct. 1206, 87 L.Ed. 1534.