The opinion
DENMAN, Circuit Judge
(dissenting).
I agree with the majority that it was our duty to examine the transcript of testimony admitted as part of the record upon the stipulation of counsel and quoted from by the appellee in support of its contention that the court had not erred in denying appellant’s motion for an instructed verdict because of failure to present evidence showing the offense was committed.
I am unable to agree with Judge MATHEWS’ concurring opinion that we cannot consider, what the Government considered and relied upon on the rehearing, namely, the motion for such an instruction, because it does not appear in the bill of exceptions that the motion was made at the conclusion of the evidence. We have held the exact contrary. In Bailey v. United States, 9 Cir., 13 F.2d 325 , in reversing the judgment of the lower court finding the defendant guilty of defrauding the United States, Judge Rudkin’s opinion states “We are * * * aware there was no request for an instructed verdict at the close of the testimony, as suggested by counsel; but if there is no competent testimony to support the verdict of guilty, and more especially if it appears affirmatively that no crime has in fact been committed, the right and duty of this court to order a reversal is not open to question.” (Emphasis supplied.)
If there be any group of cases where the requirement'of 28 U.S.C.A. § 391 to ignore technical defects should be observed, it is in those of the conscientious objectors. The Supreme Court has made clear enough the wrong in the approach of the trial of Jehovah’s Witnesses as if they are all draft dodgers “who should be sent to the front line trenches.” A great part of the youth of that religious organization belong to the generation whose adolescence came in the period between the first and second World Wars. That was the period when parents proclaimed “We did not bring our boy into the world to become a soldier.” Mothers drilled into their sons the horror of war in which they would have to maim and kill their fellow man.
No doubt draft dodgers hypocritically avail themselves of a pretended acceptance of a religion based upon such principles. However, it is but natural that such a period with such teachings in American families would make the horror and wrong of war a part of the compelling moral convictions of many of their youth.
There is nothing in the evidence of this case to warrant a doubt as to Hopper’s sincerity or for the suggestion that he did not tell the truth when he said he had not received a notice of his requested classification. That, under the rule established by the majority, was entirely irrelevant to his guilt. He cannot complain of the failure to receive a notice that he was placed in the very classification for which he applied. In the absence of the judge’s instructions it is unfair to Hopper to assume that the judge did not so instruct the jury and hence take from its consideration the question of Hopper’s veracity. His testimony at the trial and that of other witnesses that he was a duly appointed minister in his religion and that he had been preaching its doctrines prior to his application for reclassification as such a minister was not questioned.
It is my opinion that Hopper was entirely justified in his failure on June 22, 1941, to go to the camp to which the board had ordered him. This is because only a registrant in class IV-E is subject to such an order. Before, June 22nd, the effective date of the order, that is on June 20th, the board took him from that classification by entertaining his petition for reclassification in IV-D, a minister of religion, and hence subject to no board order. Thereafter they had not classified him “anew” in either IV-D or IV-E as required by the then regulations.
Prior to May 28, 1941, on an application for reclassification the registrant continued in his prior classification during the reclassification proceeding. The regulation appearing at pages 4449-50 of the Code of Federal Regulations, Supplement 1940, Title 32, provides
“§ 603.387 Reconsidering Classifications. Upon receiving new evidence the local board may at any time before induction reconsider the classification of any registrant. If the local board places the registrant in a different classification, the board shall mail a Notice of Classification (Form 57) to the registrant and shall notify the gov- *188 eminent appeal agent. If the local board refuses to reclassify, after the registrant has requested reclassification because of a change in circumstances, it shall mail a Notice of Continuance of Classification (Form 58) to the registrant.” (Emphasis supplied.)
About three weeks before June 22nd, when he failed to report, Regulation 603.387 was significantly amended by Executive Order of May 28, 1941, 6 Fed.Reg. 2603. The portion concerning a continuing classification disappeared. Instead, the May 28th Order provided, in Regulation 385, that no classification is “permanent.” 386 gives the board the power to reopen the classification on its own motion. 387 and 387(b) provide that in such a reclassification proceeding the classification shall be considered “anew” with the same right of appearance as at the original classification and its “determination shall be, and have the effect of, a new and original classification even though the registrant is again placed in the class that he was in before the case was reopened.” (Emphasis supplied.)
The bill of exceptions shows that at the conclusion of the Government’s case it offered evidence, uncontradicted in the transcript of the entire case, that such an application was entertained in a formal proceeding by the board entitled
“Proceedings Before the Local Board of Yavapai County, June 20, 1941
“Present: Alfred B. Carr, Chairman, Lauren V. Seares, Joseph W. Berg, Egbert K. Dutcher, Members, and Nellie G. . Prince, Stenographer.
“Order No. 217
“In the Matter of the Application of Robert Earl Hopper, Jr., for Classification as a Minister of Religion, and his Application for Extension of Time within which to Appeal the Decision of the Local Board of Yavapai County.”
In that proceeding Hopper suffered from the want of counsel denied him by the regulations, and he and the witness he offered made a poor showing. It well could have warranted his “being again placed” in IV-E “the class that he was in before” the application was considered. While the rule gave him the right to appeal it could be argued that it would have been of no avail. Quite likely the board was not aware of the change in the regulation by the Executive Order of three weeks before and hence failed to reclassify.
That, however, is entirely outside the question whether we, in effect, shall send an innocent man to prison by affirming a wrongful conviction. The fact is that he had been unclassified and was not shown to be reclassified “again” and “anew.”
On the Government’s showing, on June 22, 1941, when Hopper failed to report, he was not in any class on which a “duty”’ under 50 U.S.C.A.Appendix, § 311 could be created requiring him to respond to any board’s order and hence that failure constituted no crime. The judgment should be reversed.