The Selective Service Regulations imposed no legal obligation
upon an employer of a registrant under the Selective Training and
Service Act to report to the local draft board facts which might
have resulted in the registrant's being placed in a different draft
classification, and an employer's failure to make such reports was
not a violation of § 11 of the Act. P.
333 U. S.
425.
158 F.2d 792 reversed.
Petitioner was convicted of a violation of § 11 of the Selective
Training and Service Act. The Circuit Court of Appeals affirmed.
158 F.2d 792. This Court granted certiorari. 331 U.S. 797.
Reversed, p.
333 U. S.
425.
PER CURIAM.
Petitioner and his employee, one Perniciaro, were jointly
indicted and tried on the charges contained in an eight-count
indictment. The defendants were acquitted under Counts 1 to 7, the
first of which charged petitioner and Perniciaro with conspiring
for the purpose of enabling Perniciaro to evade military service by
failing to make known to the draft board facts which might have
resulted in Perniciaro's being placed in a different draft
classification.
Page 333 U. S. 425
The defendants were convicted under Count 8, however, which
charged petitioner and Perniciaro with failing to report facts in
writing to the local draft board which might have resulted in
Perniciaro's being placed in a different draft classification,
contrary to § 11 of the Selective Training and Service Act of 1940,
54 Stat. 894, 50 U.S.C.Appendix, § 311, and § 626.1(b) of the
Selective Service Regulations.
The Government now concedes that the Selective Service
Regulations imposed no legal obligation upon petitioner, as an
employer of a registrant under the Selective Training and Service
Act, to make such reports to the local board. It is also conceded
that petitioner was tried and convicted upon the assumption that he
was under such a legal obligation. We agree that the plain language
of the Regulation and the record of this case support these
conclusions.
The Government urges that, although the judgment of conviction
against petitioner should be reversed, the indictment should not be
dismissed, since the prosecution may wish to try petitioner a
second time on the charges contained in Count 8, as an aider and
abettor.
There is no showing of facts sufficient for us to pass judgment
on the question. Accordingly, we intimate no opinion on the
propriety of this procedure or the issues which it might present.
See Sealfon v. United States, 332 U.
S. 575. Those questions will be open in the District
Court on our remand of the cause.
Reversed.