Opinion
No. 11950.
October 24, 1947. Rehearing Denied November 24, 1947.
Appeal from the District Court of the United States for the Southern District of Georgia; Frank M. Scarlett, Judge.
Walter Marion McGahee was convicted of willful failure to report for induction into the armed forces of the United States, and he appeals.
Affirmed.
Grover C. Powell, of Atlanta, Ga., and Jack D. Evans, of Thomson, Ga., for appellant.
J. Saxton Daniel, U.S. Atty, of Savannah, Ga., and T. Reuben Burnside, Sp. Asst. to U.S. Atty., of Augusta Ga., for appellee.
Before HUTCHESON, McCORD, and WALLER, Circuit Judges.
It will serve no useful purpose to set out the facts of the case or to canvass appellant's contentions with respect to them, for it is quite plain that appellant had not exhausted his administrative remedies and was not entitled to interpose the defense of wrongful classification, Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. United States v. Balogh, 2 Cir., 160 F.2d 999, is a case directly in point. In addition, if we should hold that he had put himself in a position to make the defense, it is quite plain, under Lemien v. United States, 5 Cir., 158 F.2d 550, and Wells v. United States, 5 Cir., 158 F.2d 932, that none of his points are well taken.
The judgment appealed from is affirmed.