Crutchfield

(dissenting).

I dissent for reasons which will be stated in an opinion to be later filed. Among them is the doubt cast upon the decision in Hopper v. United States, 9 Cir., 142 F.2d 167 , No. 10,110, a case now pending in this court on petition for rehearing, having the effect stated in the motion attached hereto and hereby- made a part hereof.

My opinion will await the decision of the court on this and a similar motion filed in Hopper v. United States.

Upon Motion of WILLIAM DENMAN, United States Circuit Judge for the Ninth Circuit.

To the Honorable CURTIS D. WILBUR, FRANCIS A. GARRECHT, CLIFTON MATHEWS, BERT EMORY HANEY, ALBERT LEE STEPHENS and WILLIAM HEALY, Judges of the United States Circuit Court of Appeals, for the Ninth Circuit:

Now comes WILLIAM DENMAN, United States Circuit Judge for the Ninth Circuit, and moves the court that it sit en banc for the consideration of the following questions involved in this case and in the case of Hopper v. United States, 9 Cir., 142 F.2d 167 , No. 10,110, now pending on petition for rehearing in this court:

(1) Whether the indictment in Hopper v. United States fails to state a crime punishable under section 11 of the Selective…

Appellant was indicted in two counts for violation of § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix § 311. After trial before the court, a jury having been waived, he was found guilty on both counts and was sentenced to imprisonment for two years on each, the sentences to run concurrently. At the close of the government’s case, and again at the conclusion of all the evidence, appellant moved for dismissal of the indictment on the ground that the evidence was insufficient to sustain a conviction. Both motions were denied, and the denial of them is the only error assigned on this appeal from the judgment of conviction.

There is no substantial conflict in the evidence. Appellant is a citizen of Canada, domiciled in Siskiyou County, California. He is twenty-five years old and has declared his intention to become a citizen of the United States. Since 1932 he has been an active member of Jehovah’s Witnesses, but before September 15, 1941, he did not devote his full time to the work of that group.

Appellant registered with the Selective Service Board at Yreka, California, as required by § 2 of the Selective Service Act, 50 U.S.C.A. Appendix, § 302. In his…

(concurring).

I am in accord with the views expressed in the main opinion. The question whether appellant is a “regular or duly ordained minister of religion” and thus entitled to exemption from service is one of fact. Upon the record before us the question would appear to have been honestly resolved against appellant. It does not appear that the Board acted arbitrarily in placing him in Class IV-E, nor that its subsequent refusal to reclassify him in Class IV-D was arbitrary or capricious.

In respect of the indictment it was obviously sufficient to advise appellant of the charge against him, and I think there can be no serious question that it is so couched as to enable appellant to plead it in bar of a second prosecution for the same offense. Whether it was demurrable for uncertainty in the first instance is another question, and one which is not before us. My views on the subject of criminal pleading are so totally at variance with the holding in Hopper v. United States, recently decided, that I prefer not to regard that case as authority by which the full court will ultimately feel itself bound.