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the national rights of those who have never filed such a declaration of intention. United States v. Mitehell (D. C. 1918), 248 Fed. 997.
resident alien who has declared bis intention to become a citizen of the United States, and has exercised the rights of eitizenship, is liable to be drafted into the military service of the United States. re Weblitz (1863), 16 Wis. 443, 84 Am. Dec. 700,
An alien Austrian, who had first papers, was drafted before the declaration of war against Austria, and sought discharge from military service on habeas corpus, for the reason that he was born in Austria, and since the declaration of war with Austrta was no longer subject to the draft. writ was dismissed. So long as such aliens are a part of the drafted Army, they are subject to its laws and regulations and can not be discharged by a court. Congress has authority to legislate for their discharge, if it so desires. Halpern v. Commanding Oficer (D. C. 1918), 248 Fed. 1003; U. S. 1. Bell (D. C. 1918), 248 Fed. 1002.
A subject of Austria-Hungary, unless excused as a bondeclarant alien, is not entitled to exemption because by reason of a subsequent declaration of war with his country he has become an alien enemy. Ex parte Blazekovic (D. C. 1918), 248 Fed. 327.
An alien who had declared his intention seven years before, but whose petition for admission to citizenship had been denied because he illegally sold intoxicating liquor, is still a declarant within the meaning of the act. Gazzola l', Commanding Officer (D). C. 1918), 248 Fed. 1001 ; see also U. S. v. Mitchell (1918), 248 Fed. 997.
A nondeclarant alien who did not present his claim for exemption to local or district boards and failed thereafter apply for a reopening of his case, pursuant to regulations, and who has been certified into the military service, is not entitled to exeinption on writ of habeas corpus. Ex parte Tinkoff (D. C, 1918). 254 Fed. 222 ; Ex parte Lamachia (D. C. 1918), 250 led, 814; U. S. 1. Bell (D, C. 1917), 2+8 Fed. 995 ; U. S. 2. Finley (D. C. 1917), 24.5 Fed. 871 ; Ex parte Hutilis (D.C. 1917), 245 Fed. 798 ; contra, Ex parte Beck (D. C. 1917), 245 Ted, 967.
The courts will not release a nopde clarant alien who, by reason of his lack of understanding of English, fails to comply with the draft law. Lehto v. Scott (D, C. 1918), 251 Fed. 767.
Nondeclarant aliens are pot automatieally excluded from the draft, but are required to register, and present and obtain their exemptions through boards provided
to determine questions of exemption. Ex parte Hutflis (D. C. 1917), 245 Fed. 798 ; U. S. v. Finley (D. C. 1917), 245 Fed. 871; Ex parte Blazekovic (D. C. 1918). 245 Fed. 327 ; Napore v. Rowe (C. C. A. 1919), 256 Fed. 832.
In requiring nondeclarant aliens to present their claims for exemption to exempstion boards they are not being deprived of treaty rights securing them against liability for military service. Ex parte Blazekovic (D. C. 1918), 248 Fed. 327.
A nondeclarant alien who did not present his claim for exemption to local or district boards and failed thereafter to apply for a reopening of his case is not entitled, upon certification into the military service, to exemption upon writ of habeas eorpus. U. S. v. Bell (D. C. 1917), 248 Fed. 995.
Treaties exempting aliens from serviee.As the selective service act declares all laws in conflict therewith to be suspendet, a treaty entered into before the enaetment of the aet, exempting an alien from military service, does not of itself entitle him now to an exemption, for the treaty, if in conflict with the act, is repealed by the latter. Ex parte Blazekovic (D. C. 1918), 248 Fed. 327; Summertime v. Local Board (D. C. 1917), 248 Fed. 832.
A resident subject of Spain of registration age, who has declared his intention to become a citizen, held subject to the selective service act, although by the treaty of Apr. 20, 1903 (33 Stat. 2108), he is expressly exempted from compulsory military service in the United States. Ex parte Larrucea (D. C. 1917), 249 Fed, 981 ; see also Ex parte Huttlis (1917), 215 Fed. 798.
Classification.-One subject to the draft who had been fully pardoned after being convicted of a felony should not be placed in deferred classification, pursuant to sec, 21 of the original regulations or sec. 79 of those of Nov. 8, 1917. U. S. ex rel Schwartz V. Commanding Officer (D. C. 1918), 252 Fed. 314.
A man inducted into the service under the selective service act, but discharged a few days afterwards through error, held properly classified in tbe sane position he occupied before the error was committee Ex parte Fischer (D. C. 1918), 253 led. 159.
Marriage.--- Where the circumstances were such as to induce a belief that the marriage of a registrant was for the primary purpose of evading military service, he has the burden of showing to the draft board that such was not the case. Boitano u. District Board (D. C. 1918), 250 Fed. 812.
The marriage of a person subject to seleetive draft, after his registration, can
pot defeat the Government's right to his services. Ex parte Tinkoff (D. C. 1918), 234 Fed. 222.
Purchase of discharge.-A person enlisting in the Army and subsequently purchasing his diseharge held not exempt from draft under this section or independently of it. Ex parte Cohen (D. C. 1917), 245 Fed. 667.
Status of drafted men.-Uuder this section and art. 2 of the Articles of War, ch, 52, post, one certified into the military seryice under the selective service act is, from the date certified, subject to military law and to punishment as a deserter in case he has disobered the summons, and can not escape liability because he has not taken
oath. Franke V. Murray (C. C. A. 1918), 248 Fed. 865; Ex parte Thieret (C. C. A. 1920), 268 Fed. 472,
Habeas corpus.- Writ of babeas corpus will not issue, when the investigation would, in effect, be an appellate review of what has been determined by some other tribunal of competent jurisdiction, as determination by the established military tribunal of liability to draft, depending on citizenship, in the absence of arbitrary denial of rights. U. S. v. Heyburn (D. C. 1917), 245 Fed. 360.
Release of relator, improperly certified into the military service, can not be denied on the ground that respondent, an Army officer holding the relator in custody, might, on complying with the writ, be liable to punishment by his superiors for disobedience of orders, respondent's remedly being by appeal. Ex parte Beck (D. C. 1917), 245 Fed. 967.
Declarant alien, certified into the military service under the selective draft aet. may by habeas corpus raise the question of the propriety of his certification. U. S. v. Bell (D. C. 1918), 248 Fed. 992.
The burden of proof rests on complainant in habeas corpus to prove his alienage beyond a reasonable doubt.
U. S. ex re). Kotzen v. Local Exemption Board (D. C. 1918), 252 Fed. 245.
Rejection of petitioner's claim for exemption as an alien who had not declared his intention, his showing being prima facie and in no way met, but being disbelieved merely because other claims for exemption had been supported by false affidavits, was arbitrary and unfair, amounting to refusal to investigate, and his application for a writ of habeas corpus should have been granted. Arbitman U. Woodside (C. C. A. 1919), 258 Fed. 441.
2240. Compulsory registration for the draft.-That all male persons between the ages of eighteen and forty-five, both inclusive, shall be subject to registration in accordance with regulations to be prescribed by the President, and, upon proclamation by the President or other public notice given by him or hy his direction stating the time or times and place or places of any such registration, it shall be the duty of all persons of the designated ages, except officers and enlisted men of the Regular Army; officers and enlisted men of the National Guard while in the service of the United States; officers of the Officers' Reserve Corps and enlisted men in the Enlisted Reserve Corps while in the service of the United States; officers and enlisted men of the Navy and Marine Corps; officers and enlisted and enrolled men of the Naval Reserve Force and Marine Corps Reserve while in the service of the United States; oflicers commissioned in the Army of the United States under the provisions of this Aet; persons who, prior to any day set for registration by the President hereunder, have registered under the terms of this Act or under the terms of the resolution entitled " Joint resolution providing for the registration for military service of all male persons citizens of the United States and all male persons residing in the United States who have, since the fifth day of June, nineteen hundred and seventeen, and on or before the day set for the registration by proclamation by the President, attained the age of twenty-one years, in accordance with such rules and regulations as the President may prescribe under the terms of the Act approved May eighteenth, nineteen hundred and seventeen, entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States,'” approved May twentieth, nineteen hundred and eighteen, whether called for service or not, and diplomatic representatives, technical attachés of foreign embassies and legations, consuls general, consuls, vice consuls, and consular agents of foreign countries, residing in the United States, who are not citizens of the United States to present themselves for and submit to registration under the provisions of this Act; and every such person shall be deemed to have notice of the requirements of this Act upon the publication of any such proclamation or any such other public notice as aforesaid given by the President or by his irection; and any person wh shall willfully fail or refuse to present himself for registration or to submit thereto as herein provided shall be guilty of a misdemeanor and shall, upon conviction in a district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year and shall thereupon be duly registered :
Sec. 5, act of May 18, 1917 (40 Stat, 80), as amended by sec. 3, act of Aug. 31, 1918 (40 stat. 955).
Notes of Decisions.
Validity.--The selective service act is not unconstitutional as conferring legislative power upon the President, notwithstanding the presidential proclamation of the same date, issued as directed by this section of the act, which required registration of citizens specified therein; such proclamation having been designed to give notice of, and explain the act, but not to have the force of a law. Sugar v. U. S. (C. C. A. 1918), 252 Fed. 74.
Offenses.--A person claiming to be over 31 years of age was indicted and convicted for failing to register in accordance with the selective draft act. The court held the conviction justified by the evidence and held that there was no error in admitting baptismal records, and copies of application for a pension and for a homestead, executed by the defendant's mother, wherein she set out his
age. Phelan V. United States (C. C. A. 1918), 249 Fed. 43.
Persons subject to registration failed to register, and were prosecuted for this fail. ure in the United States court in Rhode Island. While
cases were pending, these persons were registered and called for service by the local board and, failing to appear, were arrested for desertion, with the assent of the United States attorney for Rhode Island. A trial by court-martial resulted in conviction and sentence to 20 years' imprisonment in the Atlanta peni. tentiary, where they are now confined. Held, that their petition for a writ of habeas corpus should be denied. It is not essential that registration occur on the date specified in the President's proclamation; the regulations authorized by the selective draft act May 18, 1917 (40 Stat. 76), provide for late registration. The provision of sec. 5, that any person failing to present himself for registration shall be guilty of a misdemeanor, shall, upon conviction in a district court, be punished by
imprisonment for one year, and thereupon be duly registered," does not require that registration be deferred until after the completion of his punishment under sentence of the civil court. It was apparently inserted in order to dispel any doubt whether a man so prosecuted was still subject to registration and military service, and also to make sure that such defendants would not escape registration, by making it mandatory in such cases. In other words, it was intended to coordinate the action of the draft boards art of the courts. Ex parte Dunn (D. C. 1918), 230 Fed. 871.
Aiding, abetting, etc., violations of this section an offense, in view of sec. 332, Criminal Code, though at common law there could be no accessory to a misdemeanor. Rutherberg v. U. S. (1918), 245 U. S. 480.
Where petitioners, who had been reg. istered during pendency of prosecution against them for failure to register as required by this section, failed to respond to call to report for service, and thus became deserters, the question whether they should first be tried under military or civil law of the United States is a matter to be settled between the respective departments of the Government, and petitioners can not defeat the sentence of a court-martial based on their desertion, because of pendency of prosecution against them for the civil of. fense involved. Ex parte Dunn (D. C. 1918), 250 Fed. 871.
In a prosecution for willful fallure and refusal to register, the indictment can not be supported solely by affidavits of defendant as to his age made long before the selective service act went into effect. Gord. nier v. U. S. (C. C. A. 1920), 261 Fed. 910.
Indictment.-Indictment for aiding, abet. ting, etc., a person in failing to register, held sufficient, without alleging that he was a citizen or person, not an alien enemy,
who had declared his intention of becoming a citizen, in view of this section. Rutherberg 0. U. S. (1918), 245 U. S. 480.
In view of R. S. 1025, an inaccurate statement as to the voting precinct in which defendant resided, contained in an indictment charging failure to register as required by the selective service act, must, in view of the usual knowledge prevailing as to such locations, be disregarded. Breitmayer v. U. S. (C. C. A. 1918), 249 Fed. 929.
An indictment charging failure to register, which alleged that accused was a male between the ages of 21 and 30, and was not an officer or enlisted man of the Regular Army or Navy, nor of the National Guard or Naval Militia, nor of the Officers' Reserve Corps, nor of the Reserve Corps in the service of the United States, and was not in any manner exempted nor excused from registering, sufficiently negative the exceptions in the act. The indictment need not allege the age of accused, nor negative accused's bad health, though inability, through sickness, to register, might disprove willful refusal to register. Sugar v. U. S. (C. C. A. 1918), 252 Fed. 74.
An indictment alleging a failure to register as required by the selective service act, etc., is not faulty because failing to set out in full the President's proclamation as to registration, where the statement with reference to the proclamation was sufficient to furnish the defendant information and notice required for every purpose. U. S. v. Olson (D. C. 1917), 253 Fed. 233.
Conspiracy.--Conspiracy to prevent perSons subject to registration under selective draft under this section held a conspiracy to defraud the United States, within sec. 37, Criminal Code, and punishable as such. U. S. v. Galleanni (D. C. 1917), 245 Fed. 977.
In a prosecution for conspiracy to violate this section, the common design is the essence of the charge, and proof that the alleged conspirators knowingly worked together for a common illegal purpose will establish a conspiracy; it not being necessary to show a formal explicit agreement or undertaking. U. S. v. McHugh (D. C. 1917). 253 Fed. 224.
Indictment for conspiracy to violate title I, sec. 3, of the espionage act, post, 2857, charging conspiracy subsequent to June 15, 1917, to induce persons liable to service under the selective draft act to refuse to submit to registration, held to charge a conspiracy to induce persons who failed to register at time set by President's proclamation not to register under this sectien, making provision for subsequent reg.
istration. U. S. v. Prieth (D. C. 1918), 251 Fed. 946.
Where a conspiracy to resist the enforcement of the draft by force has been fully formed, its subsequent abandonment does not relieve the conspirators from criminal liability under sec. 6. Criminal Code. Orear v. U. S. (C. C. A. 1919), 261 Fed. 257.
Registration.-An officer or enlisted man of a National Guard unit, not called into Federal service until after the date fixed by Presidential proclamation for registration in accordance with this section, does not fall within the provision exempting officers and enlisted men of the National Guard in service of the United States from registration. Breitmayer v. U. S. (C. C. A. 1918), 249 Fed. 929.
Late registration is expressly authorized under the act. Ex parte Dunn (D. C. 1918), 250 Fed. 871.
Although an alien has not been subjected to military duty, he must register where so required by sec. 53, Selective Service Regulations, and be classified as provided by rule 12, unless the right of exemption is waived. Ex parte Kusweski (D. C. 1918), 251 Fed. 977.
Determination of age.-Under this section, a local board, authorized to determine questions of exemption, has no jurisdiction to investigate on its own motion the question of the age of a person who had not registered and place him on the draft list, though he asserted he was not within the age limits prescribed. Ex parte Fuston (D. C. 1918), 253 Fed. 90.
Absence from home. -Under this section, and the regulations thereunder, which require persons subject to registration who were absent from the United States on registration day to register within
five days after their return, such a person can not avoid the duty by again leaving the United States before the expiration of the five days. U. S. 1. Scott (D. C. 1918), 253 Fed. 281.
Neither the act nor the regulations made thereunder required registrants to remain in their permanent homes and actual places of legal residence until drafted into military service, so that it was not a violation of sec. 19, Criminal Code, denouncing conspiracy to injure, etc., any citizen in the exercise of any right secured by the Constitution or laws of the United States, for defendants to conspire to deport from Arizona citizens of Arizona some of whom had registered under the selective service act. U. S. v. Wheeler (D. C. 1918), 254 Fed. 611.
Whether defendant, domiciled with his parents in Seattle, Wash., by registering
with a local draft board in Idaho while for transportation to a mobilization camp. on his way to New York to study had in- Ex parte Calloway (D. C. 1917), 246 Fed. tended to evade military duty, held a ques- 263. tion for the jury. l'ass v. U. S. (C. C. Under this section, failure of one proseA. 1919), 256 Fed. 731.
cuted for nonregistration to respond during Correction of questionnaire.--In the ab pendency of prosecution to call for service sence of fraud, the correction of a question- will make him a deserter, punishable under naire is a matter for the War Department, military law. Ex parte Dunn (D. C. 1918), and not for the courts. Ex parte Kus- 250 Fed. $71. weski (D). C. 1918), 231 Fed. 977.
A registrant was charged with crime Admissibility of evidence.-In a prose- and pleaded guilty in a State court. The cution for failure to register, baptismal pronouncing of sentence was deferred a few records, certified copy of application for days. During the interval, the local board pension, and application for homestead served him with a notice to report for executed by defendant's mother, wherein military service, at a time earlier than the she set out his age, are admissible, and day on which sentence was to be prothe baptismal record having been made by nounced. It was contended on his behalf a Roman Catholic priest, it is competent that the local board had thereby inducted for the priest to testify as to the tenets of him into the military service, and that after his faith concerning baptism of infants. the date on which he was ordered to appear Phelan v. U. S. (C. C. A. 1918), 249 Fed. for such service the civil court held that 43.
the action of the local board was without Certified copy of birth record in county legal effect, because a person in his status, clerk's custody admitted in evidence. Breit- awaiting sentence by a State court, is not mayer v. U. S. (C. C. A. 1918), 249 Fed. a person liable to be called to military 923.
service; no reason appeared for interfering In a prosecution for conspiracy to ob- in this case with the action of the State struct the draft, minutes of meetings of court in sentencing and retaining custody an executive committee kept by one of de
of the registrant. In re Henry (1918), fendants, a committee member, showing 253 Fed. 208. passage of resolutions pursuant to which Conspiracy to defeat registration. --Dethe other defendant caused circulars to be fendants were couvieted under an indietprinted and mailed
drafted, ment charging conspiracy to defeat regis. held admissible against both defendants. tration for military service of male per. U. S. v. Schenck (D. C. 1918), 2.53 Fed. 212. sons between tbe ages of 21 and 30 years,
The jury could determine the physical as provided for by the selective draft act of condition of defendant's father, whom de May 18, 1917 (10 Stat. 76). The overt fendant claimed to be dependent upon him act charged was the circulation of a pamfor support, from their observation of him phlet and cartoons to the effect that war while on the stand, etc., and his physical had been declared without a referendum infirmities need not be established by medi- vote; that conscription had been thrust cal expert testimony. (. S. v. McHugh upon the people; and advising that a de (D). C. 1917), 253 Fed. 224.
mand be made for the repeal of the conJudicial notice.- The date of the draw- scription act. On appeal it was argued ing under the selective service act is a that since the acts in question occurred historical fact, of which the court takes prior to the time for registration and since judicial notice without proof. U. S. v. citizens who were called to register had Sugarman (D. C. 1917), 245 Fed, 601. not commenced any service to the Gov.
It must be presumed that the grand ernment, persuading them not to register jurors were cognizant of the fact that the was not an obstruction of a function of day originally set for persons subject to the Government. The court overruled this draft was June 5, 1917. U. S. V. Prietb contention and affirmed the conviction, (D. C. 1918), 251 Fed. 946.
holding that preparation for war by Status of persons selected for service.- registration for military service is as much Petitioner, who had been arrested under an a function of the Government as the actuai indictment charging petit larceny, was not waging of war. (This case arose prev. entitled to be discharged from bis nprison- ious to the enactment of the espionage ment by the State authorities, because he act.) Firth et al. t. United States (C. C. had been ordered, before his conviction and A. 1919), 253 Fed. 30. sentence, by the local draft board to report 2241. Age limits for registering for the draft.
Provided further, That persons shall be subject to registration as herein provided who shall have attained their eighteenth birthday and who shall not have attained their