Petitioners Reply Brief — Dodez v. United States

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Supreme Court of the Winited states .

Ocrossex Tnx, 1946,

3 No. 86 eg - 7

Unrrep Srares or América, Respondent.

PETITIONER'S REPLY BRIEF. |

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INDEX.

Cases CIrep,

Baltimore Carolina Line v. Redman, 205 U.S. 654. ...

Estep v. United States, 66 S. Ct. 423..2..... .

Ex parte Cain, 39 Ala. 440........... LosuWe eee eeeees

Gibson v. United States, No. 23° October Term, 1946. .

Lehr v. United States, 139 F. 2d 919, 921-923........ ;

Murdock v: Pennsylvania, 319 U. S..105..0. 0.22... ae

Smith v. United States, 1506 U.S. 50..

Smith v. United States, 66S. Ct.423. ant owes

" Faia’ % ‘ ‘ % z

United States ex rel Hull v. Stalter, ©. C. A.%th C't..

1b1 F. 2d 6383. ay Kee ae Se ee

United States ex rel Trainin v. Cain, ©. C. A. 2d, 144 F.

RESIS Seti e

Wise v. Withers, 3 Cranch 329...

Offord v. Hiscock, 86 L. J. K. Be 94]...

Swaczyk v. United States, No. 290, October Term, 1946 .

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SO A A RI a RE a LES SN CT ene: Se

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~ Supreme Court of the Gnited States

OcTOBER Term, 1946. ° |

No. 86 o

George Wtrttam -Dopuz, Petitioner,

Vv.

Usiven Staves or America, Respondent,

PETITIONER'S REPLY BRIEF.

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The petitioner in this case objects to the Government's

gvestion as tothe disposition of the case upon a remand

‘o the trial court because the Government atteinpts to limif

eriglts of the petitioner upon a remand to a new trial.

Petitioner is entitled to more than a new trial. He is en

indictment dismissed by the trial court

‘itled to have the

‘ich should be required. to order the discharge of pr

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"it ioner.

Upon the trial-in the district court all material parts of

It is

‘heentire draft board file were received into evidence

le that upon the trial the court committed many. proce

ral errors in exeluding\evidence in respect to the failure

‘the local board to give petitioner a full and fair hearing

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and in charging the jury and in refusing the. petitioner's

requested, charges, all of which require that the judgment

should be reversed and a new triqy ordered.

But also upon the trial the evidence was: fully developed

on whether the draft board arbitrarily and capriciously -

classified the petitioner and illeg: lly denied him bis elaim

for exemption as a minister of religion under the Act and.

Regulations. Sip:

The illegality of the administrative action in this respect

was squarely presented to the {rial court upon the motion

fora diréeted verditt and for a judgment of. acquittal filed:

at the clos&.of the evidence in the case. (R. 5, 6-7, 8, 65)

The motions were overruled. (R. 65) . Exceptions were

wei to fhese rulings. (R. 66) These exceptions were daly

wrought forward in the assignments of error. (R, 139) The

court of appeals passed upon the validity of the classifiea-

tion and administrative action and held that it was not

invalid. (R. 191-200) The errors: of the court in holding

that the trial court did not commit an error in overruling

the motions were brought forward to this court in the =.

tion for writ of certiorari. (See the petition pages 2- 2-3,:9).

These errors aré complained of in petitioner’s main brief.

(See pages 14-15, #-21) ly the petition (p.- 12) as well

as in the petitioner’s main brief (p. 69) ‘petitioner requests |

the court to reverse the case, order the indictment dis-

missed and discharge the petitioner from eugtody.

While the Government concedes that rth is a ‘‘nice

question concerning the factual ie upon which the

hoard’s claseification rests’? (see Go¥ernment’s brief’ p.

(16) it merely suggests that the ease be remanded for a new

trial so that it-ean decide whethér to nol. prosse the in-

di:tment. This relief requested by tlie Government is riot

sufficient. It does not guarantee to the petitioner that

justice will be done.,; The case has-been fully developed be

cause the entire draft board file was received in evidence.

Upon another trial there will not be any new or additional

evidence on the illegality of petitioner’s classification.

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The pétitioner has a right to-request this edurt to protect

\him from the trouble and expense of going through another '

Mal in this case by holding now that the indictment should

have been dismissed. ’ He should not be: put to the uneer-

tainty of what the Selective Service System will advise the.

Department of Justice as to the correctness of petitioner’s

classification. © The Selective Service System has already

‘considered his Claim for exeniption and in passing upon it~

denied his elaim. It is assumed that inasmuch as the Sys-

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tem referred Dodez to the Depart.nent of Justice for prose-

cution that the\System will be :consistent: and advise the

Department again.that he was properly denied exeinption.

The inclination ‘of the Government to the’ View, that peti-

joner may have been illegally classified now should he taken

by the Court as grounds for ordering now that the indict-

nent be dismissed ana that “petitioner be discharged,

On many previous occasions before this Court counsel -

for petitioner have argued as to the niinisterial status of

Jehovah's Witnesses and the illegality of draft board de-

fermimations in denying them their claim for exemption ag

inisters. of religion. It should not now be necessary to!

again repeat. such argument here. The invalidity of the |

draft hoard action in d®nying petitioner his claim for eX-

emption as a minister of religion is fully established, by

the argument made by counsel for petitioners in the eases

‘tyled Smith &. Unifed States, and. Estep v, United States,

Nos. 66 and -292, October Term, 1945. (See Joint Brief for

Petitioners in those ‘cases pages 131-190.) Referenge js

here made.to such argument. It is incorporated herein as’ |

though copied at length herein. See also the Petitioner's

Reply Brief Reargument in Gibson vy. United States, No. 23,

“Uetober Term, 1946 (pages 11-19), For each and every one

of these. reasons the undisputed evidence shows that the

administrative vitae is illegal because of the fact that the

decision of the ward was illegal, &: bitrary and capricious

_ and without basis in fact. Estep v. United Ntates, 6& So 0%.

423; Umted States ex rel Hull v. Stalter. C. C.,A. 7th, 15]

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‘Term, 1946, pages 15-18, 21-41.

seape and discharge vase petitioner from custody. Smith.

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F’, 2d 633; U hit d States ex rel Trainin. v. Cain, ©. C. A. 2d

i44 BY. 2d 944, certiorari dered, 328 U. 8S. 795; Ex parte

Cain, 39 Ala, 440; Offord. v. Hiscock, 86 L. J. K.\B. 941;

Wise vo Withers, 3 Cranech 322; Wurdoc I/v. Pennsylvania, "

319°U. S.105, 106-109, 110, 114, 117; Lehr y. United States, .

139 F. 2d 919, 921-922. See also the Petition for Writ of .

Certiorari. in Swaceyk \ *, United States, No, 290 ) October

It is fundame ntal that if the undisputed evidences shows ©

that the :petitioner is not guilty of the offense charged it-

is the duty of the appe late eourt-to render a judgment dis- -

missing. the indictment which should nave been rendered by

the trial court. Since the draft boé ard file is all in evidence

it is manifest that a tiew trial will not correct the illegality

of the classification. that now appears frony the record,

Under the circumstances the judenient should he reversed. |

aatd the trial court should be ordered to dismiss the indiet-

fo! nited States il a0. 50: and Baltimore ( ‘arolina Lane

. Redman,'295 U.S. ee |

|. CONCLUSION.

WA EREFORE the \petitioner prays as in- his petition for

writ of ¢ertiorari’ 4nd as in his main brief that the judg-

ment of the trial court and of the court of appeals be re

versed and tliat tha cause. be remanded to the trial eourt

with instructions td dismiss the indietment and for dis,

charge of petitioner \from custody. ‘In the alternative, the |

petitioner prays for a remand of the case with instructions}

for.a new trial.as prayed-for by the respondent in its brief.

etitioner prays for sue ‘hother and further relief to. whieh

he may show himself justly entitled.

Hayne (") COVINGTON,

Victor F, Scumupr,

; Counsel for Petitionet.”