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United States v. Peskoe.

decided: November 14, 1946.

UNITED STATES
v.
PESKOE.



Author: Maris

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

MARIS, Circuit Judge.

The defendant was convicted upon a charge of having violated the Selective Training and Service Act of 1940, as amended.*fn1 Upon this appeal from the judgment of conviction the defendant asserts that the indictment does not charge an offense and consequently that the District Court erred in denying the defendant's preliminary motion to quash and dismiss the indictment. He also urges that the trial judge erred in refusing to direct a verdict of acquittal. We shall first consider the adequacy of the indictment.

Section 11 of the Act describes seven substantive offenses,*fn2 of which only the two described in the second and third clauses of the section can have any relevancy here. They read: "Any person charged as herein provided with the duty of carrying out any of the provisions of this Act, or the rules or regulations made or directions given thereunder, [1] * * * [2] who shall knowingly make, or be a party to the making, of any false, improper, or incorrect registration, classification, physical or mental examination, deferment, induction, enrollment, or muster, and [3] any person who shall knowingly make, or be a party to the making of, any false statement or certificate as to the fitness or unfitness or liability or nonliability of himself or any other person for service under the provisions of this Act, or rules, regulations, or directions made pursuant thereto, * * * shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished * * *".

The defendant contends that the indictment does not charge the offense described in the second clause which consists of the making of a false, improper or incorrect classification, because there is no averment that the defendant was in fact classified improperly by reason of the alleged false statement. He contends further that it does not charge the offense described in the third clause, which consists of the making of a false statement as to the liability or nonliability for service under the provisions of the Act, because though the indictment contains an averment as to the making of a false statement by the defendant for the purpose of obtaining an incorrect classification it contains none as to his liability or nonliability for service.

The pertinent averments in the indictment are that:

"* * * Max Louis Peskoe was a registrant with Selective Service Board Number 2 * * * in accordance with the provisions of the * * * Selective Training and Service Act of 1940, * * * and being required by law and charged with the duty to * * * truthfully inform the * * * Board * * * of his true and correct status; in order to induce and persuade the said board to place * * * Max Louis Peskoe in a classification to which he was not lawfully entitled and with intent that the said * * * board * * * might be induced * * * to give and allow * * * Max Louis Peskoe a classification to which he was not entitled by reason of being a member of the land or naval forces of the United States, did * * * send * * * a certain letter * * * to wit:

'February 10, 1942

Dear Sir:

My status has not been changed.

Sincerely,

/c/ Max Peskoe.'

having previously informed the said * * * Board by letter under date of May 14, 1941 as to his eligibility and liability for military ...


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