Enge

This is an appeal from an order denying a petition for writ of habeas corpus addressed to the appellee United States Marshal, alleged to have appellant in his custody, and holding that no writ issue thereon.

The petition alleges that appellant has been indicted for failure to report for induction into the armed forces of the United States as ordered by local Selective Service Board, hereinafter called the Board. * Appellant had registered with the Board and claimed, upon proper forms, that he was *639 a regularly ordained minister of a religious organization, known as Jehovah’s Witnesses, exempt from military service by the provisions of Section 5(d) of the Selective Service and Training Act, 50 U.S.C.A.Appendix, § 305(d), hereinafter called the Act. Appellant requested a IV-D classification pursuant to Selective Service Regulation 622.44. The petition further alleges that appellant, in support of his claim for such exemption, presented to the Board clear, convincing and uncontradicted evidence that he was such a minister of religion and that the Board, on October 5, 1941, granted appellant the IV-D classification as claimed.

The petition further alleges that thereafter, and…

(concurring in the result).

In the District Court of the United States for the Southern District of California, appellant was indicted for violating § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311. There, upon, on a bench warrant regularly issued, appellant was taken into custody in the Southern District of California by the Marshal thereof and immediately sought release from such custody by petitioning the District Court — the court in which the indictment was pending — for a writ of habeas corpus. This appeal is from an order denying his petition.

The order should be affirmed upon the authority of Riggins v. United States, 199 U.S. 547 , 26 S.Ct. 147 , 50 L.Ed. 303 ; Johnson v. Hoy, 227 U.S. 245 , 33 S.Ct. 240 , 57 L.Ed. 497 ; Jones v. Perkins, 245 U.S. 390 , 38 S.Ct. 166 , 62 L.Ed. 358 . See, also, Ex parte Royall, 117 U.S. 241 , 6 S.Ct. 734 , 29 L.Ed. 868 ; In re Lancaster, 137 U.S. 393 , 11 S.Ct. 117 , 34 L.Ed. 713 ; In re Chapman, 156 U.S. 211 , 15 S.Ct. 331 , 39 L.Ed. 401 ; Glasgow v. Moyer, 225 U.S. 420 , 42 S.Ct. 753 , 56 L.Ed. 1147 .

The questions discussed by my associates (Judges Denman and Stephens) need not and, I think, should…