Fogel v. United States , 162 F.2d 54 ( 1947 )

SIBLEY, Circuit Judge

(dissenting).

The conviction of Fogel of felony under this indictment and on this evidence I think is unlawful.

1. The charge ipade is that he wilfully failed and neglected to register under the Selective Service Act on February 16, 1942, he being a person required to register then. We' judicially know and the evidence is that this is the date fixed by Presidential proclamation for registration by persons from twenty-one to forty-five years old. Fogel did not register that day and it appears that he had no lawful excuse if he was under forty-five years old. His offense was complete at the expiration of the time fixed by the proclamation. Though there was a continuing duty to register, a subsequent registration would not have can-celled, but would only have mitigated, the completed crime. Prosecution for that crime became barred after three years, on February 16, 1945. This indictment was not filed till Jan. 22, 1947. If the Draft Board or other person authorized had again called on him to register and he had failed to do so, a new crime would have occurred for which he could be prosecuted, but that did not happen. The President however did, as argued to the trial court and mentioned in the majority opinion, by a proclamation of March 19, 1942, call for a registration on April 27, 1942, by persons from eighteen to sixty-five years, and Fogel was certainly between those ages. By again failing to register on that date he committed another crime; but that is not charged in this indictment, and it also was committed more than three years before the indictment was found. The theory of the conviction is that by doing nothing he renewed his crime every day to the date of the trial; which amounts to saying there is no statute of limitations for this offense. This seems to me not to be in accord with authority, when the thing that is made a crime is the failure to perform a continuing duty, when nothing at all happens after the crime became complete. In United States v. Irvine, 98 U.S. 450, 25 L.Ed. 193, the crime was for an agent or attorney “wrongfully to withhold” pension money from a pensioner. The duty to pay it over was certainly a continuing one, but the court held the statute of limitations applied, and began to run so soon as it was evident that the withholding was wrongful. This court on the authority of that case held in Warren v. United States, 5 Cir., 199 F. 753, 43 L.R.A.,N.S., 278 that a bankrupt charged with concealing assets from his trustee, the concealment after the trustee’s appointment consisting in not disclosing them in his schedules, if he did no new affirmative acts was protected by the statute of limitations, running from the first failure to disclose, since the crime, then became complete.^* I don’t think we can brush aside these decisions.

2. But if this indictment covers as indictable every day’s failure since February 16, 1942, the question remains whether Fo-gel is shown beyond a reasonable doubt to have been a person required to register on that date, that is, a person then under forty-five years old. He must have been proven horn after February 16, 1897. The government proved that about February 9, 1946, Fogel, seeking to be naturalized, presented a sworn written application in which his birth in Poland was stated as on July 10, 1898. On September 12, 1946, this application was again read to him and he said it was correct. He was not questioned about it at all. He was asked for his registration card and said he had none. During the next month, a member of the F. B. I. went to him and asked for his •classification and registration cards and interrogated him about his age. This witness testifies that Fogel said he did not exactly know how old he was, that to the best of his recollection his birth was about 1895 to 1898, the best he could ascertain. Sam Fogel’s older brother Joseph who has lived in Philadelphia since coming from Poland to the United States in 1912, and who is a naturalized citizen, testifies that he himself will be fifty-seven in October, 1947, making his birth year late in 1890. He said he left Poland four weeks before he became twenty-one to escape service in the Russian army which was to begin at twenty-one, and came to the United States in 1912. Shortly afterwards he arranged a ticket for his brother Sam, who arrived in the United States June 18, 1913. Sam was about two and a half years younger than himself, one child born between them having died. He did not know Sam’s exact birthday, but he was nearly twenty when he arrived in Philadelphia in 1913. He was a grown man, both he and Sam having to shave before Joseph left Poland. All the family in Poland were killed in the war. Joseph and Sam alone are left. Joseph registered in Philadelphia for both world wars but was not called into the service. Two of his sons fought in the last war, one being shot down on His twenty-fifth mission over Germany.

I see no reason for rejecting the testimony of this unimpeached citizen witness, who thus places Sam’s birthyear as 1893. The F. B. I. witness testifies that under questioning Sam did not know his birthday. It appears that Sam registered as an alien under the Alien Registration Act of 1940, 8 U.S.C.A. § 451 et seq., but the government does not bring out the age given in that. The older brother is referred to as though he also is an evader of military service. He duly registered on April 27, 1942, the very day fixed by the proclamation for men of his age, and his two sons entered the army. When he left Poland to escape military service in the Russian army in 1911 the Czar was on the Russian throne and the Kaiser on that of Germany, and other countries of F.urope were requiring four years service of all young men. At that time we Americans did not think ill of the thousands who came to this country to escape it. It is no impeachment of his testimony.

The conviction thus rests on preferring as indubitable evidence Sam’s having written, or someone for him, a birth date of 1898 in a questionnaire where the date was of no importance. This evidence was admissible, it is not a confession of guilt of this offense so as technically to require corroboration; but it is certainly not true beyond a reasonable doubt when right aft-erwards it was developed that Sam did not know when he was horn, and his older brother who better knew about it fixes the date reasonably as 1893 at latest. Sam is not shown beyond reasonable doubt to have been under forty-five on February 16, 1942.

Rehearing denied; SIBLEY, Circuit Judge, dissenting.

* The law as to this offense was changed in 1938 by so amending the limiting statute as to make it commence to ran only from the discharge in bankruptcy, § 29, sub. d, 52 Stats. 855, 11 U.S. C.A. § 52, sub. A.