Opinion · Court of Appeals for the Second Circuit
United States v. Ward
173 F.2d 628
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1949-04-07
- Topic
- employee-benefits-and-executive-compensation
How later courts describe this case
- clerk in Office of Selective Service Records
Citator
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- 21 opinions
UNITED STATES v. WARD,173 F.2d 628(2nd Cir. 1949)
UNITED STATES v. WARD.
No. 197, Docket 21253.
United States Court of Appeals, Second Circuit.
April 7, 1949.
Walter Henry Ward was convicted of a violation of the Selective Training Service Act and he appeals.
Affirmed.
On October 28, 1947, defendant was indicted in two counts for violation of the Selective Training and Service Act of 1940, § 11, 50 U.S.C.A.Appendix, § 311. The first count charged that from April 20, 1943, to May 15, 1945, he knowingly failed to keep his draft board advised of an address where mail would reach him; the second count charged that from October 26, 1943, to May 15, 1945, he failed to present himself and report for induction into the armed forces of the United States.
At the trial, the prosecution called as a witness Mrs. Anna Abelow, a clerk in the Office of Selective Service Records. She produced and identified certain records as records of Local Board No. 60, made and kept in the ordinary course of business of that Board. Before the records were received, defendant's counsel was permitted to cross examine Mrs. Abelow. She stated that she did not know the particular individuals who made the records; that the records came from the file of Local Board 60; that she had picked the records out of the file; and that the records referred to Walter Henry Ward. Over objection, the file was then admitted into evidence.
Mrs. Abelow testified that, according to the records and her knowledge of the procedure of Selective Service Boards, the defendant had registered with the Board and had received and returned a questionnaire;Page 629that he was classified 3-A on December 19, 1941, and notice of classification was sent him; that he was ordered to report for physical examination and for induction; and that there was no notice in the file of a change of address.
The Mexican Vice Consul in New York City testified that, according to the official records of the Mexican Consulate records kept in the regular course of business in his office, a tourist permit to visit Mexico was issued to defendant on April 21, 1942. The record was received in evidence, over objection. On cross examination, he stated that he had not been employed in the Consulate at the time the permit was issued.
An agent of the Federal Bureau of Investigation produced a statement signed in his presence by the defendant on October 22, 1947, and testified that the statement contained the material part of the story which defendant told the agent; and that the parts which the agent thought were immaterial were eliminated before defendant signed the statement. The statement was then read in evidence, over objection.
The judge charged that it was uncontradicted that defendant registered and filed his questionnaire; that he received notice of his classification 3-A, and that the notice to present himself for physical examination was mailed. He continued: "Now the testimony is uncontradicted that on October 16, 1943, a notice was mailed to him at the address which he had given, 417 West 147th Street, requiring him to appear for induction on October 26, 1943, and that came back." He cautioned the jury thus: "I have already told you if I have made any mis-statement of the evidence, you are not bound by my mis-statement but you must be bound by your own recollection, because, as I told you before your job is to decide the facts and my job is to decide the law." When counsel for defendant objected to the portion of the charge referring to evidence as uncontradicted, he told the jury that he was withdrawing that portion of his charge and leaving it to them "what weight you are to give documents offered in evidence in this case and also what they prove."
A verdict of guilty was returned; the judge denied a motion to set aside the verdict, and sentenced the defendant to four years' imprisonment on each count, to run concurrently.
John F.X. McGohey, U.S. Atty., of New York City (Roy Cohn, Bruno Schachner and Clarke S. Ryan, all of New York City, of counsel), for appellee.
Before L. HAND, Chief Judge, and CHASE and FRANK, Circuit Judges.
2. Defendant also contends that records taken from the files of the Office of Selective Service Records were inadmissible. They were properly authenticated, being official records identified as such by their custodian. Wigmore, Evidence, § 2158.
The main objection to the admission of these records is that the witness did not make the records and did not know when or by whom these particular records were made; in effect, it is that the entries in the file are hearsay. The government argues that this objection is met by its compliance with the "entries in the regular course of business" statute, 28 U.S.C.A. § 1732, formerly 28 U.S.C.A. § 695. Whether there was a sufficient foundation for admission under this statute we needPage 630not decide, for, to the extent the entries were hearsay, they were admissible as "official statements" made in the course of the entrants' official duties as employees of the United States. Wigmore, Evidence, §§ 1630 ff.; Chesapeake Delaware Canal Company v. United States,250 U.S. 123, 128-129, 39 S.Ct. 407, 63 L.Ed. 889; United States v. Harbanuk, 2 Cir.,62 F.2d 759; Armit v. Loveland, 3 Cir.,115 F.2d 308; Vanadium Corporation v. Fidelity Deposit Co., 2 Cir.,159 F.2d 105, 108-109; see Rule 26, Federal Rules of Criminal Procedure, 18 U.S.C.A.
3. Objection is made to the judge's charge that it was uncontradicted that the defendant registered and filed his questionnaires. This error, if it was error, was cured by his subsequent statement that the jury's recollection of the proof was decisive.
4. The sentence was within the statutory limits, so we cannot review it. Wilson v. United States, 9 Cir.,145 F.2d 734; Russell v. United States, 8 Cir.,119 F.2d 686.
Affirmed.Page 631