Gordnier v. United States

GILBERT, Circuit Judge.

The plaintiff in error was convicted under an indictment which charged him with willful failure and refusal to present himself for or to submit to registration, according to the requirements of the President’s proclamation and of section 5 of the Selective Draft Act (Act May 18, 1917, c. 15, 40 Stat. 80 [Comp. St. 1918, § 2044e]). On the trial proof was made of certain statements made by the plaintiff in error shortly before he was accused of the offense, the purport of which was that he did not know whether he was then 45 or 46 years of age, that he was born at Coudersport, Pa., on August 19, 1872, or 1873, that he was opposed to war and that he would not register unless compelled to do so. In addition to these statements, evidence was introduced of two affidavits which he had made when registering as a voter, one of date March 12, 1906, in which he stated, “My age is 32 years [omitting fractions of years],” and one of April 9, 1908, in which he said, “My age is 34 years [omitting fractions of years]There was also introduced an affidavit found in the official files of the county clerk’s office of Los Angeles county, which was part of a petition under the Torrens Law, sworn to on December 1, 1915, in which the plaintiff in error stated that he was 42 years of age. Objection to these affidavits was interposed on the ground that the prosecution had failed to show the corpus delicti. At the close of the trial, on the ground that no competent proof had been offered to sustain the charge, the plaintiff in error requested that the jury he instructed to return a verdict of not guilty.

The plaintiff in error contends that no corpus delicti was shown, and that it was error to admit the affidavits in evidence whether they he regarded as admissions or confessions, atid relies upon the rale which has been recognized in the courts of the United States, that to sustain a conviction, some sort of corroboration of a confession or admission is necessary. United States v. Boese (D. C.) 46 Fed. 917 ; United States v. Mayfield (C. C.) 59 Fed. 118 ; Flower v. United States, 116 Fed. 241 , 53 C. C. A. 271 ; Naftzger v. United States, 200 Fed. 494 , 118 C. C. A. 598 ; Rosenfeld v. United States, 202 Fed. 469 , 120 C. C. A. 599 ; Breitmayer v. United States, 249 Fed. 929 , 162 C. C. A. 127 ; Daeche v. United States, 250 Fed. 566 , 162 C. C. A. 582 ; Goff *912 v. United States, 257 Fed. 294 , —- C. C. A.-. The affidavits which were introduced in evidence against the plaintiff.in error were not confessions,- and they can hardly be said to be admissions, not having been against-interest at the time when they, were made. Nor are they judicial-admissions. They stand only as declarations of the accused made under oath at a time long prior to the enactment of the law under which he is here prosecuted. They would undoubtedly have been admissible in evidence, if there had been some proof tending tó show that the plaintiff in error was in fact of the age which he represented himself to be at the time when they were made. In brief, the whole case against the plaintiff in error rests upon his affidavits. Unless he was within the prescribed age, he committed no crime by failing to register. The fact that he wás subject to registration cannot be established beyond a-reasonable doubt by the contents of the affidavits.

The judgment is reversed, and the cause is remanded for a new trial.