United States v. Gary Wayne Black

Appellant herein was convicted after a jury trial of a violation of 50 U.S.C. App. Section 462 (Refusal to Submit to Induction).

Appellant’s sole contention is that his physical pre-induction examination disclosed that he had a disqualifying condition. The medical report in appellant’s selective service file, which was admitted in evidence, set out appellant’s physical condition. The record discloses ample evidence that appellant’s condition was diagnosed and that two Army doctors found appellant acceptable for military service. In his instructions, the district judge instructed the jury that “the determination made by the doctor was made on a sufficient basis and therefore the determination of the propriety of the order to report for induction” was not before the jury, and that as a matter of law the appellant was under an obligation to report for induction.

We agree.

In United States v. Shunk, 438 F.2d 1204 (9th Cir.), where the appellant offered testimony at the trial concerning his physical condition, which testimony was rejected, the court stated:

In this case the record shows there was a basis in fact for the finding of acceptability. We see no error in the action of the…