The opinion
L. HAND, Circuit Judge
(concurring).
Judge SWAN and I concur except that we think that the evidence did not support the verdict on the first count. The indictment alleged that Rubinstein submitted his affidavit of February 2, 1943, “in support of his request for reclassification from classification IA to classification 3B”; but we can find no testimóny that he did so. The only part of the record which the prosecution says proved it, we quote in the margin, 1 and it does not show that he used the affidavit “in support of” any request whatever. Nor was this defect merely a variance between the indictment and the proof; for no crime at all was committed, so far as concerned that part of his affidavit. It is true that part of the language of the statute 2 is: “knowingly make * * * any false statement * * * as to the * * * nonliability of himself * * * for service”; but that does not include a statement on which the registrant, at the very moment of filing it, declares that he does not mean to rely; and we think it not an unfair paraphrase of the testimony that Rubinstein said to the board: “Don’t pay any attention to what I have said about the dependency of other people upon me; I am not relying upon that part of my affidavit.”
A local board, even though presented with evidence that a registrant was *258 entitled to deferment, was not legally bound to defer him, if he made no claim for deferment. No public interest was served in deferring registrants who did not ask to be deferred. Conceivably Congress might have thought that it was necessary to the success of the war to protect those in whose interests deferment was possible; and had that been enacted deferment would not have been a personal privilege but a kind of duty. There is not the least ground so to construe the statute: the law expected all to serve who wer.e fit and did not claim deferment. The boards were unfitted on their own initiative to learn whether registrants who were willing to serve, ought not to be allowed to do so. Deferment being a privilege like any other personal privilege, its holder abandoned it by failing to assert it; and, although in the case at bar Rubinstein might indeed have been laying a false foundation for a future claim, he was not indicted for doing so, and the foundation could not become a crime unless later he built upon it the necessary superstructure by an attempt to use it.
“Q. Is that the time when he handed up these documents in evidence, from No. 15 to 15-1? A. Yes.
“Q. What did Mr. Rubinstein say when he handed up these documents?
* i'fi * * *
“Q. What happened; what did Mr. Rubinstein say? A. He stated that he received a notice of reclassification from Class 2-B to Class 1, and he requested to be placed back in 2-B. He advised that he was president of three companies entirely devoted to the war effort, he owned no stock in tírese companies, and was paid a salary of $1,300 per month plus bonus; in the past six months he received a bonus of $6,000.
* * * * *
“Q. Didn’t he say in words or in substance to the board that evening that what he was there for that night was to ask for classification or continuance of classification in 2-B? A. That is correct.
“Q. Not 3-A*; right? A. As I recall it, yes.
“Q. So obviously that did differ from the written paper; correct? A. Yes.
“Q. And his request thus made to the board for that 2-B classification involved a consideration of nothing in respect of assets or dependents, did it not? A. Yes.
“Q. By your answer, Yes, you mean that that involved consideration of occupational deferment matters alone? A. That is correct.”
* By this the witness meant 3-B.
§ 311, Title 50 U.S.C.A. War Appendix.