Opinion
No. 5205.
January 17, 1944.
Appeal from the District Court of the United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Judge.
Mike Zilkanich was convicted of failing to report for induction into the military service pursuant to a local draft board's order, and he appeals.
Affirmed.
Hayden C. Covington, of Brooklyn, N.Y. (Horace S. Meldahl, of Charleston, W. Va., on the brief), for appellant.
E.E. Hamstead, Asst. U.S. Atty., of Morgantown, W. Va. (Joe V. Gibson, U.S. Atty., of Kingwood, W. Va., on the brief), for appellee.
Before PARKER and DOBIE, Circuit Judges, and WYCHE, District Judge.
This is an appeal from a conviction and sentence under an indictment charging violation of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., in failing to report for induction pursuant to the order of a local Draft Board. Defendant is a member of the sect known as Jehovah's Witnesses and claims exemption from the provisions of the act on the ground that he is a minister of religion.
Appellant was tried in the court below prior to the decision of the Supreme Court in the case of Falbo v. United States, 64 S.Ct. 346, decided January 3, 1944. The trial court was of opinion that there was nothing in the evidence to impeach the validity of the Draft Board's order and declined to submit to the jury the defense that he was a minister of religion. An examination of the record convinces us that this was correct under our decisions in Baxley v. United States, 4 Cir., 134 F.2d 998; Goff v. United States, 4 Cir., 135 F.2d 610; Honaker v. United States, 4 Cir., 135 F.2d 613. Under the decision in the Falbo case, supra, there can be no question whatever as to the correctness of the trial court's action.
Affirmed.