VENUS v. UNITED STATES
Argument of Hayden C. Covington
Chief Justice Earl Warren: Number 75, Carlin Constantine Venus, Petitioner, versus United States.
Mr. Hayden C. Covington: May it please the Court.
This writ of certiorari brings before you, gentlemen, a conviction in the United States District Court for the Southern District of California, San Diego Division under the Selective Training and Service Act for an alleged violation of the law by failing to keep the local board informed as to an address where communication from the board would reach the petitioner here at all times.
The regulation involved is 32 CFR 1641.3, which appears on page 3 of my brief, the white covered brief and it merely says that a registrant should at all times keep the board advised of an address where mail would reach him.
But an order to correctly understand what address was meant by the President in the promulgation of the regulation, it's necessary for the Court to consider Section 1641.7 which appears in my reply brief, the green-back document at page 4, just an excerpt form, which mentions that when a change is made in the address, the home address of the registrant, not a temporary or other place of abode, but the home address for the registrant notification should be given within 10 days.
And when those two regulations are interpreted together, it shows that it does not mean any address where the registrant maybe found but what the President had in mind was the home address of the registrant.
Justice Potter Stewart: But where does that appear in your --
Mr. Hayden C. Covington: That appears at page 4 of the reply brief, Your Honor and I must apologize to the Court for not setting it out.
It's under Roman numeral nine, the second --
Justice Potter Stewart: Oh, I see.
Mr. Hayden C. Covington: -- third and fourth line on page 4 of the green-back reply brief.
Justice John M. Harlan: (Inaudible)
Mr. Hayden C. Covington: This is the excerpt, the pertinent part which uses the term home address which shows that the President had -- did not have a meaning in mind of temporary addresses such as seaman and traveling salesman would use, but their permanent home address, and that becomes important in this case because we have involved here, this home address, is one temporary address, that I'll try to reveal to you gentlemen as I proceed with the argument.
Justice Charles E. Whittaker: May I ask you please sir, just for a moment?
Would it be a violation of the statute not to have given a home address if nonetheless he did give an address where the mail would reach him?
Mr. Hayden C. Covington: Well, as I understand the regulation, if we construe the two together, the home address is the one that is required, but if a man gave an address where he would actually be reached, that would not be, I don't think, a violation of the Act because it must be given a reasonable interpretation and not one that would work a forfeiture.
If I -- do I make myself --
Justice Charles E. Whittaker: We'll that's what my question is.
Mr. Hayden C. Covington: Yes.
Well, I -- I hope I answered it that when you interpret the two together, as in this case, he gave both.
You see his employer's temporary address as well as the home address.
Justice Charles E. Whittaker: All I want to do is to make it clear that you are not saying that the failure to give home address is a violation even if he gave an address where he can be --
Mr. Hayden C. Covington: No, that's not my contention.
No, I don't make that contention Justice Whittaker.
Now, the motion for judgment of acquittal raises three points whether as far as the matter of law, the letter of June 7 giving the employer's address and the home address in San Diego and the employer's address at Modesto complied with the regulation, whether or not also that on June -- rather on February the 1st, that they alleged in the indictment, he actually was residing at Modesto at this temporary address given and mail would have reached him, the question of whether or not he actually under all the circumstances had an unlawful intent or willful intent to violate the law under all the facts and circumstances and whether the evidence shows that it -- the evidence is as consistent with innocence as it is with guilt.
And, there is circumstantial evidence involved in this matter on one prong and -- we say that the motion for judgment of acquittal should have been granted for that reason and then we raise the third point, which I don't think I'll have time to argue, but we'll submit on the brief and that is the error of the court in refusing to give instructions 45 and 46.
Now the date alleged in the indictment is February the 1st.
The Court should bear in mind and I believe I submit this with respect and -- but without any authority to back me up except my own opinion about the matter in reading the law and giving it a reasonable interpretation, in the usual case for a specified data is alleged in the indictment, we know that any date proved would be adequate as long as within a reasonable date unless there is a terrific variance that prejudices the defendant.
But in the Selective Service Regulations, each separate day is made a separate offense and there is no continuing duty that can be relied upon unless it is specifically alleged in the indictment as was held by the Ninth Circuit in the Graves case, which is cited in the main brief, Graves against the United States.
And, if we take the evidence here as of February the 1st, it shows indisputably that this man was in Modesto at this employer's address, the gymnasium where he slept on a cot from -- as his temporary place of abode from February 1st to February 8th.
And if we limit it to February 1st, there's no doubt that under the undisputed evidence, the man is not guilty.
Judge Carter, the trial judge in the District Court did not confine it.
At first, he did in the ruling on the evidence to February the 1st, but as we got further along in the case, he broadened it out in his charge to include the entire month of February, and we, of course, took exception to that by virtue of special request number 75 which attempted to limit the offense to February the 1st which he refused but which we don't assign error here because we think as a matter of law, under the regulations, this indictment and the regulations can be interpreted so that it is limited to February 1st because there is no allegation of continuing duty.
In the first indictment that was returned here, this man was charged with failing to report for induction.
He was never charged with failure to provide the local board with an address until after the third trial.
The first conviction was appealed and reversed because of refusal to give special instructions and there were two hung juries on subsequent trials, Judge Weinberger tried the case twice and Judge Picard from Detroit tried it the third time and finally, Judge Carter tried it the fourth time and got hung juries on the first two counts and resulted in one conviction under this last count of the second indictment which was returned within two months before the statute of the limitations.
Justice Charles E. Whittaker: But Judge Carter trial although was on a new indictment.
Mr. Hayden C. Covington: On a new indictment containing two counts and the -- the old indictment -- the initial indictment charging failure to report.
The first indictment was merely clear and simple that he failed to report on November the 8th, three trials on that.
After the third trial, with two hung juries, the second indictment was returned with the continuing duty on the failure to report and the jury hung up on that as well as on the first indictment.
The only they could agree on was this second indictment, second count of the second indictment of failure to keep the local board advised on February the 1st.
And there was no allegation of continuing duty on that second count and that's why, I think, it becomes very critical in this case to confine this to February 1st in view of the fact that under the regulations, there is a continuing duty on everyday, and in order to get continuing duty, it's necessary to allege it in the indictment and they did not allege it as to this failure to give notification of an address.
They confined it to February the 1st and that was our contention, but nonetheless, Judge Carter, as the case progressed and as the evidence developed, began to broaden the thing from February 1st, clear to the end of February the 28th and the Court of Appeals seemingly approved this broadening process.
Now, briefly, let me give you the facts.
Justice John M. Harlan: Was that broadening process objected to its trial?
Mr. Hayden C. Covington: Well, I objected to it in the evidence there when -- on page -- I forget what it is, when he made his ruling but, then -- we had a conference on the instructions, we didn't know precisely what is the position he was going to take until finally the charge was given, and we had our request in there asking it to be limited at -- or -- in number 75, asked it to be limited to the February the 1st, because there was no continuing duty alleged in the indictment.
But, nonetheless, Judge Carter proceeded to broaden it out, and the only exception we had -- have is on our refusal to give that request and instruction number 75, which we don't assign here because we think as a matter of law, it can be limited to February 1st and should be limited because there is no allegation of continuing duty as the court held itself, the court below, in the Graves case.
Now, if I may briefly give you the facts.
When this man rested he was not one of Jehovah's Witnesses.
He did not put in a conscience objection.
He claimed to be classified as I-A.
He got classified I-A.
He was classified III-A on the count of his father's disability.
He got married to his first wife and in this interim, he became one of Jehovah's Witnesses, domestic difficulties arose, and calling and bickering resulted, as you see in the FBI report that was excluded from evidence, which is not material, but nonetheless, in this interim of all these various addresses appear on this cover sheet, there is one address that was his wife's address where he and his wife, first wife lived together.
All the other addresses were his home address, his parent's address when he was living with his parents.
Now, he was ordered to report and this becomes significant.
He was ordered to report for induction in 1954, he reported and refused to submit.
He was given notification of classification, and he took appeals from that and exhausted his remedies.
Now, this is the first time.
1954, he was indicted for refusal to submit in Los Angeles and some months later, the indictment was dismissed because of the decision of this Court in Gonzales against the United States about failure to give the FBI and the hearing officers' report, and other reports to the registrant.
And after that, while then the case was reprocessed within this interim, that -- this problem was in the hands of the District Attorney and out of the draft board hands, these things occurred.
On June 7th, 1954, he left San Diego, his home address, with his parents and went to Modesto to take up working in a gymnasium.
This man was a physical coach or expert and a weightlifter and an athlete, and he also was a masseur and worked in this gymnasium at various jobs up in Modesto.
When he moved up there, he notified the board and this letter of June 7th which becomes very important.
And, I call your attention to the letter of June 7 on page 67 of the record and the letter in substance merely informs the board that there -- he is moving to Modesto and he gives his employer's new address 1431 10th Street, which is the gymnasium, but he repeated that he could be reached within one or two days at his San Diego address and incidentally, the clerk testified but she knew that that address on that envelope was his home address in San Diego and, they knew at all times that he could be reached there.
He was up there from September -- from June 7th to Feb -- 1954 of February 1955 working and sleeping on this cot in the gymnasium.
In this interim, he was under this indictment at Los Angeles and you have to make this 250-mile trip 12 different times from Modesto to Los Angeles for court appearances and as a consequence, he did such little work that the business went down, and employer gave up to business there of in Modesto, and that job played out so to speak, and he returned to Los Angeles.
When he left Modesto and returned to Los Angeles, he did not then notify the board because that was merely a change of a temporary address, not his home address.
He worked in Los Angeles for up until the 20th when he went back to San Diego to help his parents move from this old address to a new address in San Diego and their street numbers aren't there and, it may confuse you during this argument and I'd like to give you this.
The first address, the first home address in San Diego is located on 11th Street in San Diego.
The second address in San Diego is located on 30th Street in San Diego.
And, this temporary address up in Modesto where he was working in this gymnasium was on 10th Street in Modesto not San Diego.
Justice Potter Stewart: How far away is Modesto to San Diego?
Mr. Hayden C. Covington: Well, Modesto from Los Angeles is 215 and yet another 90 or 100 to San Diego, it makes about 350 miles, Your Honor.
But anyhow, following February the 8th, he went to Los Angeles and got into this tree with a man by the name of Beal where he had a numerous temporary addresses in Los Angeles but did not notify the board of this change until he went to San Diego to help his parents transfer from the 11th Street address to 30th Street and, when he got back to Los Angeles, he testified, he dropped the card in the mailbox along with a letter to a woman by the name of -- who is Bertha Leonard.
We brought Leonard to trial and she testified she received her letter, but the board did not explain what happened to his letter.
I mean, his card -- the government postal card notifying of the change of the home address from 10th Street in San Diego to 30th Street in San Diego.
Anyhow, in this interim in 1954, July 1954, November 1954 to July 1955, this draft board file was taken out of the hands of the draft board and sent to Sacramento and then to Los Angeles for the use of -- in this prosecution under the first indictment that was dismissed.
And it was in this interim found the file was out that he was in Los Angeles, changed back to Modesto, and wrote this card, deposited it in the post office, and he had this Beal as a corroborating witness that he did deposit it along with this letter to this woman Leonard in San Diego who -- woman who testified that she received the letter but there was no evidence of what happened to the card.
Fact of the matter is the clerk had no independent recollection at all.
She merely said that she didn't find it in the box when the first trial came up, which was four years after the letter was mailed.
And, they made no search in the file to locate it until after the third trial.
Mind youm three trials without trying to locate that letter and after the third trial, the District Attorney made a -- make them search to three out -- 3,000 out of 14,000 files and said they couldn't find it.
When Venus went to the Board in 1956, April after the -- I mean, August following April of 1956, the FBI man came and interviewed at him at his place of employment in Santa Monica, in 1956, April, and then it's the first time that he learned about this order having been issued.
Now, in this connection, we all know that one of Jehovah's Witnesses who wants to exhaust his remedies must report and refuse to submit under the Espec decision to exhaust remedies as he had done previously.
Also, he didn't appeal from the classification card showing that he did not receive either the classification card or the order.
Now what happened was, he didn't leave (Inaudible) card when he left Modesto in the post office because he had in mind notifying the board from Los Angeles.
In addition to that, everybody knew that he could be reached in care of his home address and as soon as he got change of home address, he deposited this card and that becomes a question of fact because his credibility was involved as the defendant and yet he had a corroborating witness here, Beal, as to the mailing of the card.
Justice Charles E. Whittaker: Mr. Covington.
Mr. Hayden C. Covington: Yes, sir.
Justice Charles E. Whittaker: May I ask you please, sir.
Why is an attack made by the board to reach him by mail on or about February 1, 1955, the date mentioned in the indictment?
Mr. Hayden C. Covington: Never.
There was no tria -- at that time, the file, Your Honor, was out of the possession of the board.
It was in the hands of the District Attorney under this first prosecution.
Justice Charles E. Whittaker: Are you answering, are you saying no?
Mr. Hayden C. Covington: No.
Justice Charles E. Whittaker: Now, then the next question is why is there then any dispute?
Is there any -- with that fact that there was then on file with the board the letter of June 7, 1954?
Mr. Hayden C. Covington: There's no dispute.
They don't contest that and that's established by the record itself, documentary evidence introduced by the Government.
The June 7th letter was in the file and it was received in evidence as a part of Government's Exhibit 1.
Justice Charles E. Whittaker: Well now you say, is there's no dispute about the fact that he was at the Modesto address when billed February 8, 1957?
Mr. Hayden C. Covington: There is absolute in no contradiction of that.
He was there indisputably until February 8th of that --
Justice Charles E. Whittaker: Well, then what's the relevance about the card and things that happened on February 19th, and thereafter?
Mr. Hayden C. Covington: Well, Your Honor, I don't think there is any relevance but the Court of Appeals made it relevant by their decision.
They kept expanding this thing and when the Court of Appeals got it, they extended it clear over until September 1955.
Justice Charles E. Whittaker: But that was only on the theory, wasn't it?
Mr. Hayden C. Covington: Sir?
Justice Charles E. Whittaker: That involved -- that involved another theory.
That is on the theory that you were contending that the letter, the card that you're now talking about sent on February 19th was still within such reasonable time after February 1 as ought to be considered to comply.
Mr. Hayden C. Covington: Well, the only thing is, we prove what the facts were, that he actually deposited the letter. We didn't want to -- we had to develop that.
That was a part of our evidence which he actually -- which actually had occurred according to my understanding of the interview of him and his witnesses.
We didn't have any intent to broaden the scope of the indictment by offering that.
The fact of the matter is that it's just part of the draft board's file -- draft board file.
We didn't want to enlarge it, but the man did actually notify when there was a change of his home address in Modesto from 11th Street to 30th Street, then it became his duty within 10 days thereafter to notify the local board which he did within one day.
Justice Charles E. Whittaker: One more question, and I'm through, was there any evidence at all that a letter addressed to this petitioner at the Modesto address or the San Diego address given in his letter of June 7th, 1954 would not have reached him on February 1?
Mr. Hayden C. Covington: Absolutely not one iota of evidence to that effect.
As a matter of fact, the evidence showed it would've reached him at either addresses on February 1st, on February the 8th, and even as far as February the 28th.
Justice Charles E. Whittaker: I have to ask you one more question.
What was he convicted of?
Mr. Hayden C. Covington: Well, he was convicted under the court's charge of failing to notify the local board at anytime from February the 1st to February the 28th and not keeping the -- the draft board advice of an address where he could be reached.
Justice Charles E. Whittaker: What the indictment charged in here?
Mr. Hayden C. Covington: The indictment charge was on or about February the 1st, Your Honor and our contention was it should've been limited to that because there was no allegation of continuing duty.
That was our contention, but Judge Carter was the judge of the court and he took this categorical position.
When we started out February the 1st, but as the evidence developed, finally, it brought it on up to February the 28th.
And when we got in the Court of Appeals, they quoted on down to September 1955 -- 18 months.
They said that he violated the law for 18 months and in this connection, if I may just take some time to call your gentlemen's attention to page 247, that's in the back part of the record, the Court of Appeals' opinion where I think some mistakes occur and while some may be inadvertent that's important.
247, if you'll look down, the left hand column where you see two I-A's there about the middle or two-thirds of that first paragraph it -- this last classification being on September 1st, 1955 following an unsuccessful appeal to the appeal board, where as a matter of fact, he didn't even appeal from that last classification and that's an erroneous statement.
They must have had in mind the appeal before the first indictment in 1954 so that's just -- it's probably an inadvertent use of the language that the court -- the court didn't intend undoubtedly to misrepresent the facts, but unless it's given its proper interpretation, it'll get the -- the court in a mistake here, page 251, in the middle of the page where you see that parenthesized expression about over one-half the way down in parenthesis, and this is definitely inadvertence on the part of Judge Bard when he dictated the opinion, see letter attached, actually the record says, see letter inside.
That's trivial, but be that as it may, I'm not (Inaudible) the judges so, but this Court doesn't make that mistake either that it's see letter inside.
Chief Justice Earl Warren: Mr. Covington, may I ask you when after the 1st of February 1955, did the board first tried to contact --
Mr. Hayden C. Covington: They didn't do anything, Your Honor, until way in 1956 or 1957.
They never answered any of his letters.
Now the reason for this -- this thing is a bizarre case.
And, it could happen between any registrant at any draft board when you stop to consider.
Now we're not accusing the draft board of any wrongdoing.
What happened here was that this man moved out to Modesto at his temporary address.
He'd given this -- he wasn't to the lawyer.
He didn't know how to write a letter clearly so he gave these two addresses, the employer's address and his own address.
The clerk made three -- they -- they used this file so much, they wore out two cover sheets and had to make a third one because the other two were (Inaudible) from so much handling, and as the clerk, that's her testimony and when they made up the second and third cover sheet, they didn't have that warning flag “see letter” on the inside on the front of the second and third one and when she put this order and classification in the cards, she used the new one that didn't have this red flag on it “see letter inside” that gave his parent's address and as a consequence, the thing was shot up to Modesto where he wasn't even at because the building where he had worked, the employer had vacated, it had been torn down, the property integrated into an adjacent second-hand car lot, and then following that, that was in April and in October when this no -- September when this notice was mailed, a classification, which he didn't get, didn't receive and from which he should've appealed in order to exhaust his remedies and would have appealed in order to make his defense on his ministry classification, nobody knows where it wound up back.
He left no forwarding card.
His employer had abandoned the address.
The mail may have gotten in the second hand automobile dealer's possession, who didn't know him, and it may have died there as did the order to report.
In any event, he testified categorically that he didn't receive either one and it's reasonable to say that he didn't because if he had been wanted to exhaust his remedies, he would've appealed and he would've reported and refused to submit as he have done previously.
Everything corroborates that contention that he didn't receive it.
Chief Justice Earl Warren: Was there ever any contention on the part of the Government that they've tried to reach him through his -- through his parents at his home in San Diego --
Mr. Hayden C. Covington: They never tried to reach him through his parents at all, Mr. Justice -- Chief Justice Warren.
The reason is that nothing was returned to the board.
The board merely assumed he didn't get it.
They reported in January 1956 at the United States Attorney as a delinquent and so no -- no action was taken after that because the board policy was once it is in the hands of the District -- they don't do anything.
He wrote two letters, one in April of 1956 and another one in September of 1957, which I referred to.
He reviewed all these circumstances in the letter to the board before prosecution and they didn't answer.
And much more could be said, those are the highlights of the facts and gentlemen, I would like to reserve just a few minutes for reply, but before I sit down, if there is any questions, I would certainly happy to answer.
Chief Justice Earl Warren: I think that's it.
Argument of Jerome M. Feit
Mr. Jerome M. Feit: Mr. Chief Justice, may it please the Court.
The issue in this case is the sufficiency of the evidence to support the jury's verdict that in February 1955, petitioner knowingly failed to comply with his address notification responsibility under Section 1641.3 of the Selective Service Regulations and Section 12 (a) of the Universal Military Training and Service Act.
As we understand petitioner's argument, the counsel's argument to the Court is in effect saying, put within the factual confines of this case, that even though petitioner left Modesto, California in February 1955 without, as the jury found, notifying his local board of a change of address or providing forwarding directions and even though petitioner's parents left this old address in San Diego, and moved to a new address without petitioner notifying the board of that fact or again providing forwarding directions, nevertheless, because at some earliest stage, he had notified -- gave the board this old address of his parents, he has satisfied the address notification requirements.
We say that such compliance is no compliance at all.
Chief Justice Earl Warren: Is the Government thwarted in its effectuating the Act by reason of what he did?
Mr. Jerome M. Feit: Mr. Chief Justice, we believe that the general purpose of the Selective Service Act, the notification requirement being the -- one of the most important element as we have set forth on pages 22 --
Chief Justice Earl Warren: I can -- I can agree with you.
That I understand that, but I merely ask you if the Government was thwarted in the effectuating of the Act by what he did.
Mr. Jerome M. Feit: Look, let me say this Mr. Chief Justice, in a broad sense, the Selective Service Act insofar as it requires registrants to keep the board advised intimately where they're at is the only central list of manpower, which is available to the federal government.
In this list of manpower of all the registrants under the 1948 Act, other federal agencies, and I might point out during the Second World War, the War Manpower Commission made use of this list of manpower, the only list of manpower available.
Other defense agencies, other civilian agencies made use of this -- this list and certainly, in times of emergency, it's not simply an emergency situation, it's not simply the formal induction of a -- a registrant into the armed service -- services which is the only kind of problem which we -- we maybe faced in an emergency and this Court said in the Falbo case in 320 United States, with respect to the 1940 Act that it was passed to help mobilize national manpower.
And certainly, in direct answer to your question, yes, we think looking at the overall picture that the fact that the regulations specifically and repeatedly notify each and every registrant, you must keep the local board informed, Section 15 (b) of the Act specifically directs the registrant, that is set forth -- a portion of the Act which relevant is set forth on page 23 on footnote 14, one of the few provisions which thereafter incorporated in the regulations that directs the registrant to keep his local board informed as to his current address.
Chief Justice Earl Warren: I'm just wondering if -- if he -- he had failed, as you say, on February 1st to give this notice and then some time, let's say in June or July, he had walked into the -- into the office and had given his correct address and in the meantime, the Government hadn't needed him, would he still have committed the crime in your judgment?
Mr. Jerome M. Feit: Well, before I answer the question, may I clear something up.
The position of the Government is that the -- his obligation was during the month of February 1955 not February 1st 1955.
I might point out that --
Chief Justice Earl Warren: Well, if --
Mr. Jerome M. Feit: -- that in this connection that petitioner's counsel on page 194 of the record, this was the judge who had charged the jury that -- that the question for them in the case was whether petitioner during February 1955 had notified -- had sent this address notification to the local board.
Petitioner's counsel said that he was satisfied with that charge -- with that charge.
He later -- he later noted that he had also indicated there was a -- an address -- an earlier address which he likewise rely upon, but again, in the Court of Appeals' opinion which is -- which never challenged, the Court of Appeals pointed out, the requirement existed during the entire month of 1955.
In answer to your question, I think that the essential element in the case of this sort is intent and knowledge.
At trial petitioner testified that he had notified the local board.
He recognized this obligation.
The jury found that he had not done this under instructions, which is said to the jury, regardless of whether or not the local board had received the postcard.
“Put that out of your mind”, the Court told the jury.
The essential question in this case for you to determine is whether or not petitioner mailed the postcard in February 1955.
The jury found that he had not -- had not mailed the postcard so that in answer to your question --
Chief Justice Earl Warren: You don't say that it in February 1955, that he --
Mr. Jerome M. Feit: The -- the --
Chief Justice Earl Warren: I thought it was April or --
Mr. Jerome M. Feit: No.
If I may -- if I may, the -- the petitioner's claim testified at trial -- when he asked by counsel, I refer the Court to page -- record at page 111, 110 as well, he said that in February -- February 22nd, 1955, when he returned to Los Angeles, he had gone to the San Diego to help his parents move.
Chief Justice Earl Warren: I see.
Mr. Jerome M. Feit: When he returned to Los Angeles on 22nd of February --
Chief Justice Earl Warren: I see.
Mr. Jerome M. Feit: -- when he mailed the postcard.
On petitioner's theory then, the local board would have had the obligation of proceeding by a trial and error method in an attempt to locate him and it would've assumed a burden, which we think is directly contrary to underlying schemes of the regulations which makes it clear that the active cooperation of the draft registrant, by keeping his local board advised of his current mailing address is -- is an essential to the success of the Universal Military Training Program.
Particularly, to this argument -- excuse me?
Justice Charles E. Whittaker: May I ask you, Mr. Feit what is it that if you were to here admit or admitting the trial of the court that petitioner actually was in the address given by his mother of June -- December 1954.
If he was there on February 1, 1955, the date mentioned in the indictment, and continued to remain there until the 8th day of February 1954, if you haven't (Inaudible), do you not think that the defendant -- the petitioner would've been entitled to an instruction of not guilty?
Mr. Jerome M. Feit: No, Your Honor, because we admit that he left -- the testimony is that he left Modesto on February 7, and arrived in Los Angeles on February 8.
The indictment says on or about February 1st.
The trial court said that the question was whether during the month of February, petitioner had notified his local board of a change of address.
I -- I might add that this is an affirmative duty which is placed upon the draft registrant.
Justice Charles E. Whittaker: Let's just forget for the minute what the trial court said.
Do you think that the -- the man's actual presence on February 1 and thereafter until February 7 or 8 destroys a charge that he was not there on February 1?
Mr. Jerome M. Feit: But -- if on -- under your assumption that the charge is simply whether he was there on February 1, I -- I will have to answer yes, but as I said the charge was even on the indictment on or about February 1 --
Justice Charles E. Whittaker: Right.
Mr. Jerome M. Feit: The trial court broadened the charge to the entire month and I might point out that his own testimony, he recognized that he had this obligation by testifying that he had mailed the postcard.
The jury reject -- rejected this testimony but from it, we think, they could -- they could -- from all the circumstances, they could determine that he had violated knowingly during the month of February 1955 his obligation duty.
Justice Charles E. Whittaker: And he -- that presents the only question here on certiorari.
The person's course by actual introduction of evidence, without objection, expand the date alleged in the indictment as currently you think -- maybe the petitioner thought too at the time he was (Inaudible) by excusing his con -- or your conduct by mailing the card on February 22nd, but I wonder if that -- that acquiescence, that trial on that issue is enough here to expand the indictment's date of February 1 to include February 22nd to the whole month of February.
Mr. Jerome M. Feit: But -- I might point out to the -- to Your Honor that -- the record page 253 and 254, the Court of Appeals' opinion, the court recognized and upheld the instructions of the trial court that, “It is necessary for us to pass upon the correction -- the -- the correctness of such rulings and instructions when we find no error in them,” that is, as the trial court have charged the jury that the proof of the offense at any time during the month of February 1955 would support the charge in the indictment.
As I understand the petitioner's -- he had never challenged as far as -- it never challenged the trial court's determination.
This was a -- this was the -- the Court of Appeals affirm that determination and he never raised this issue, I might add, in the petition for certiorari, nor has he -- nor has he suggested it in any of these briefs filed subsequent thereto.
Chief Justice Earl Warren: Mr. Feit, may I ask you this question.
As I understand it for the -- he registered in June of 1954, he had not, when he registered, but I mean, he left his address that he said, “I'm going to -- I'm going to Modesto at to such and such an address but you may reach me at my home address at San Diego on 10th Street.
And it will reach me in a day or two.”
Now, let us assume that when this man left Modesto, he did go down to San Diego as he -- as he stated to his parent's home and remained there at that 10th Street address, would you say that he had violated the law to the extent that you could put him in the penitentiary for three years, that he didn't -- if he didn't notify in view of that letter that he had written?
Mr. Jerome M. Feit: May I -- may I say this in -- in direct answer to you -- to Your Honor's question?
He never urged this at all at the trial.
His major burden of the defense was, yes, I have the obligation.
Chief Justice Earl Warren: No, I didn't ask you that.
I want -- I just want to know if you consider that that -- that is -- is punishable if he had done that is it -- is it a direct violation of law for which a man can be sent to (Voice Overlap)?
Mr. Jerome M. Feit: I think in this case -- I think in this case, Your Honor, and if I may state some of the factors upon which are reliable to that --
Chief Justice Earl Warren: No.
All I -- I --
Mr. Jerome M. Feit: Yes, I would say in this case, in these circumstances, we think that in the background, the whole circumstances in this case by a petitioner's own testimony, and in line of the June 1954, this was the permanent mailing address, that he had given his board, was in Modesto, California.
From 1950 through 1954, up until the June 1954, petitioner had notified his local board of six different changes of address.
Each of which he wanted mail to reach him.
He had notified them first in 1950, again in 1951, then in 1952, twice in 1953, and again and in 1954.
The San Diego address was the last previous address he had given his board before he sent the June 7 letter.
Now, this is a hasty draft --
Chief Justice Earl Warren: Did they -- well, did they put that incorporated in his letter?
Mr. Jerome M. Feit: Well, I think that what he told the local board was and the letters --
Chief Justice Earl Warren: What does the letter say?
Where is that?
Mr. Jerome M. Feit: That is 67 of the record, Your Honor.
Chief Justice Earl Warren: 67?
“At this time, I wish to inform you of my departure from San Diego to Modesto, California because of secular employment.
The Federal Bureau of Investigation, I have notified when in Los Angeles after induction procedures.
My new address is same employer 1431 10th Street, Modesto, California, but can be reached within one or two days at my San Diego address.
Thank you, all of you.
I remain respectfully, Carlin Venus.”
Mr. Jerome M. Feit: I think --
Chief Justice Earl Warren: Now if he went back to that -- if he went from Modesto went back to that -- that San Diego address and failed to give notice within 10 days, has he committed a felony?
Mr. Jerome M. Feit: If he went back to that San Diego address, I would say no, but the fact to the matter is that in this case, his parents moved in February 1955 and were no longer at that San Diego address.
Chief Justice Earl Warren: They moved ten blocks.
Mr. Jerome M. Feit: Well, but petitioner never notified this -- never notified the Post Office Department, never notified, never left forwarding directions, and that the stand that this Court said in the Bartchy case at 319 U.S., is we recognize that -- that a draft registrant is not required to notify his local board of every move, of every change of address no matter how transitory or permanent the move may be.
He can keep his local board advised of his current mailing address.
This petitioner did during the period of 1950 through 1954 scrupulously on six separate occasions, or he may, as was done in the recognizing the Bartchy case, have a permanent mailing address with the board and provide forwarding directions so that he can reasonably believe that mail sent to the address he gave the board would reach him in time for compliance with the broad's -- with board's directives.
Chief Justice Earl Warren: I'll tell you why I ask the question.
We have -- I come from part of the country where -- where we have many, many thousands of -- of transient workers that is -- is the -- in the fields and -- and they have a home, perhaps, it's in -- in Oklahoma or -- or Arkansas or Texas or some other State in Midwest and they follow the practice clear of course to the Pacific coast and -- and perhaps they stay in no place longer than a month, or at most, six weeks.
And I'm just wondering about those people, if they leave a home address and keep moving along, moving along, and changing but letting them know that in all events, they can be reached within one or two days.
I just wonder if the law is so severe that it would remit a man --
Mr. Jerome M. Feit: Of course not, Your Honor.
Chief Justice Earl Warren: -- for doing that.
Mr. Jerome M. Feit: Of course not.
When you --
Chief Justice Earl Warren: You -- you seem to think that because he had given -- he had changed his address several times before this that that was something against him, but there are great many traveling people and people -- people in -- in transitory business that way, that pretty hard to -- to designate where they'd be except at a home address?
Mr. Jerome M. Feit: I'm saying this case, and certainly in respect to the question you posed, where you have a situation when individual travels around whether he'd be seaman or migratory worker, certainly, his -- his obligation is -- is met if he provides his draft board with permanent address and like a chain a forwarding address so that mail could reach him, reasonably expect that mail could reach him at the address that was given his local board.
But, what we say in this case is that, petitioner in February 1955 which was the crucial period charged in the indictment, either -- he was neither at the Modesto address nor was he at the San Diego address, nor were his parents at the San Diego address.
He, himself, testified repeatedly at record page 111, when asked why did you sent in a change of address at the end of February 1955, when counsel was inquiring.
He said, because Mr. Beal, the individual he was working in – with in Los Angeles, Mr. Beal and myself were traveling from place to place in Los Angeles, to cut trees and we're moving about, and if we knew we were going to move, and I knew that the board had to have a permanent address, so I wanted them to have my parent's address and by having my parent's address, they could always contact me by means of my parents.
Now the jury, under the instructions, were told, if you believe that he mailed this in, you got to acquit him.
Justice Hugo L. Black: If you believe, what?
Mr. Jerome M. Feit: If the jury was told by the trial judge that if you believe this testimony, if you believe that the petitioner, as he said, mailed in an address notification change in February 1955, you've got to acquit him, regardless of whether or not the local board received it -- received that change.
Justice Hugo L. Black: Do you mean, a letter about his parent's -- addressed on (Inaudible)?
Mr. Jerome M. Feit: The postcard that he -- has alleged -- that he alleges he sent in February, yes, yes, Mr. Justice.
Now, this was a factual question.
The jury having before petitioner's -- petitioner evaluated his testimony, functions which were -- which was squarely up to the jury, decided that upon examination of his testimony, examination of his (Inaudible), they weren't going to believe him, that they weren't going to believe that he had mailed in the postcard as he said.
Justice Charles E. Whittaker: Mr. Feit.
Mr. Jerome M. Feit: Yes, Mr. Justice?
Justice Charles E. Whittaker: May I ask you exactly, is it quite fair to say that the petitioner did not raise in the trial court the sufficiency (Inaudible) of his letter of June 7th, 1954?
Mr. Jerome M. Feit: I don't believe I said that.
I'm sorry if I gave the misinterpretation.
I -- I think when -- when -- let me -- let me make our position clear.
Petitioner's defense at trial was that he had mailed the postcard.
When the judge so charged, as I indicated to Mr. Justice Black, petitioner said, “I'm satisfied with this charge, however, we make an additional claim.
We say that there's a June 7, 1954 letter which sufficiently appraises the local board that we can -- I could be reached at my parent's old San Diego address and I request that the court charge the jury that they might consider this,” and this is at page 199 and 200 at the record and following this statement by the petitioner's counsel, the court so instructed and --
Justice Charles E. Whittaker: This whole paragraph on page 199?
Mr. Jerome M. Feit: Yes.
And -- and again on page 200, the court says that if the jury finds that defendant had at all times kept the board advised where mail would reach him, then of course he has to be acquitted.
This is precisely our position that this was a factual issue.
Both issues were submitted to the jury.
The jury had before it the evidence.
The jury determined that he had done either that he had neither sent a postcard in February 1955 nor sufficiently kept the broad -- board upraise of an address at any prior date.
This is -- petitioner says in his reply brief that this is a question of law.
He requested the trial court to instruct the jury on this issue.
Jury was instructed.
The jury concluded the petitioner had nei -- had done neither directly communicated with board or -- or left the change of address.
Justice Charles E. Whittaker: Is it -- have they had the facts (Inaudible) admittedly agree with you that the evidence, un-contradicted evidence establish that on the first day of February 1955 and thereafter until it (Inaudible), petitioner was at the address mentioned in Modesto.
Mr. Jerome M. Feit: That's right.
Justice Charles E. Whittaker: And now if that's so, then how could there been an issue of fact about it?
Mr. Jerome M. Feit: Well, but -- as I -- perhaps, and as well as I would like to indicate to the Court that the charge which was on or about February 1st of his failing to notify with knowledge the local board of an address where mail would reach him, was enlarged during the trial, but to --- to include, it encompassed the whole month of February 1955.
Petitioner's obligation was did he in February 1955 fail in his affirmative duty, affirmative duty of keeping his local board advised of an address where mail will reach him.
Chief Justice Earl Warren: Why during the trial was it arbitrarily changed to February instead of February 1st?
Could you have said February and March or February and March and April, or -- why aren't you confined to on or about the first day of February as your (Inaudible) says?
Mr. Jerome M. Feit: Well, I think it -- it's well settled proposition that on or about a particular date, can include a reasonable time certainly at to the date mentioned, in the Court of Appeals' opinion at page 256 -- at 254, at footnote 5, the court sets forth a number of opinions in which that very thing was held that a variance between what is charged in the indictment and what is proved is not material or -- or prejudicial unless it involves elements of surprise that would hamper defendant's efforts to prepare a defense.
But the defendant's -- petitioner's defense in this case was that in February 22nd of 1955, after he had returned from the San Diego, after he had helped his parents moved, that it was at that time that he notified his local board.
So he certainly wasn't surprised in his defense, he certainly knew of his obligation.
He never raised the issue in the trial court as we understand it nor in the Court of Appeals, he doesn't raise in his petition for certiorari.
It's the first time that the issue is -- is made.
Chief Justice Earl Warren: Well, I -- I understood you to say that if he had left Modesto and had gone back to San Diego to the 10th Street address where his parents --
Mr. Jerome M. Feit: 11th Street.
Chief Justice Earl Warren: Yes.
11th -- 11th Street that -- in your judgment, there would've been no -- no crime committed.
Mr. Jerome M. Feit: Well, we think in that situation, the essential element of the crime would not have been proved, that is his intent.
Chief Justice Earl Warren: Alright.
But now let -- let me point this out to you.
He left Modesto around the 7th or 8th of February and he did go to the 10th -- to the 11th Street --
Mr. Jerome M. Feit: And left Los Angeles (Inaudible)
Chief Justice Earl Warren: And -- and then helped them move from there, didn't he?
Mr. Jerome M. Feit: His testimony was that on the 8th --
Chief Justice Earl Warren: So what --
Mr. Jerome M. Feit: -- he went to Los Angeles and on the 19th he re -- and where he dangle -- became employed with tree cutting business.
Chief Justice Earl Warren: Yes.
Mr. Jerome M. Feit: That he only returned to San Diego for two days, the 19th and 20th of February to help his family move, then return to San -- to -- to Los Angeles where he remained for the remainder of 1955.
Chief Justice Earl Warren: Yes.
Mr. Jerome M. Feit: And -- when he returned to Los Angeles, at that time he sent the postcard.
Chief Justice Earl Warren: But at least up to -- at least up to the time that his parents moved, he, having been back there at the time -- in San Diego at the time that they did move, he was not violating the law, was he?
Because, he had already told them that while he was -- he was going to take a secular job at Modesto, he could always be reached in a day or two at the San Diego address.
So, if that address remained until the 20th of the month and he, himself, was there up to the 20th of the month, or on the 20th of the month, there would have been no crime committed, would there?
Mr. Jerome M. Feit: For as we understand his obligation under the charge of the Court was he had during the month of February 1955, to keep his board advised.
And, his whole testimony at trial, the entire testimony at trial was a recognition of this obligation, a recognition that he had to do this, and the jury found that he had not.
He -- when he left his parents' address on the -- on the 28th and returned to the Los Angeles area, he was not where, he said he was in the June 7 letter, either -- he was neither at Modesto, California nor his parents' old San Diego address.
They had moved from that address.
He had not provided his post office with forwarding directions.
And this is an individual who had strictly complied, six times notified his board during the four-year period would testify he -- at the trial that he knew since he had been a registrant of his obligation to keep the local board informed and advised of an address where mail could reach him.
Justice Hugo L. Black: You confused me a little.
Mr. Jerome M. Feit: I'm sorry, Mister.
Justice Hugo L. Black: I understand you to say that he did leave notice for the board that he could be reached at his parents' address?
Mr. Jerome M. Feit: Well --
Justice Hugo L. Black: I thought you have said that -- you didn't admit.
Mr. Jerome M. Feit: No, on the --
Justice Hugo L. Black: I thought the other was received -- that notice was received?
Mr. Jerome M. Feit: That's right.
But the -- the -- in June of 1954, he sent a letter to the board which was received by the board, he said he was moving on --
Justice Hugo L. Black: But then --
Mr. Jerome M. Feit: He had said that he is moving to the Modesto, California from San Diego, gave his Modesto address to the local board said that he could be reached within one or two days in his old -- at his parents' San Diego address which at that time was 650 11th Street in San Diego.
Now, what I had referenced to was his testimony at trial, that on February 22nd, he'd returned from San Diego.
He had helped his parents move from the 650 11th Street to the 13th Street address in San Diego, returned to Los Angeles and he testified that on the 22nd, he sent a postcard to the local board because he knew as I read from the record --
Justice Hugo L. Black: That's different from there?
Mr. Jerome M. Feit: The right.
The -- during the month of February, the February 22nd, he had sent a postcard to his local board advising him of his parents' new address, at 30th Street address in San Diego to which they have moved from the 11th Street address on the 19th.
Justice Hugo L. Black: Do I understand then that it is admitted that these was in the record a letter stating that he was moving from place to place and that he could be reached at anytime by sending a letter to his parents' address, is that admitted?
Mr. Jerome M. Feit: No.
What we think that that letter of June 1954 referred to is this -- says this --
Chief Justice Earl Warren: What page is that on?
Justice Felix Frankfurter: The June 1954 letter is at record page 67.
Chief Justice Earl Warren: 67.
Justice Hugo L. Black: Or did it -- was the letter at that time in the file?
Mr. Jerome M. Feit: We think what the letter of June 1954 was this, “I -- I am moving to the Modesto, this is my principal mailing address.
This is where I want you to send my mail.”
Chief Justice Earl Warren: No, read -- read what he said.
Mr. Jerome M. Feit: Well, this is the -- I think that the -- that the jury could fairly interpret that letter to --
Chief Justice Earl Warren: No --
Justice Hugo L. Black: What I am simply trying to find out what is, as I understand it now, you say that the letter was there in which he told them he was moving and moving around, and that he -- he could be reached usually at this address of his parents.
And as I understand it now, you say that that notice was nullified neither to get (Inaudible) from him because his parents moved 10 blocks from where they have been living, is that correct?
Mr. Jerome M. Feit: Well, we say is that in February 1955 he had a duty --
Justice Hugo L. Black: I'm -- I'm not talking that about February of 1955.
Was there in the record in February of 1955, January of 1955 --
Mr. Jerome M. Feit: Yes.
Justice Hugo L. Black: -- December 1954, November 1954, September 1954 and on that was there a letter on file which told him that he was moving around from place to place, and if notices, if they didn't get him in Modesto, they could get him at the address of his parents?
Mr. Jerome M. Feit: This letter of June -- June 7th, 1954 printed on the record, yes, was in the file.
Justice Hugo L. Black: That was in the file?
Mr. Jerome M. Feit: That was in the file, Mr. Justice.
Justice Hugo L. Black: And it was there at the time that they indicted him for sake -- at -- on the ground that he had not given them sufficient notice as to where he could be reached?
Mr. Jerome M. Feit: That's right.
Now, the draft board testified that if when she -- he -- a notice was sent to petitioner in October -- September and October of 1955 to the Modesto address which was never returned to the local board, that she testified that if that letter, this is at that page 69 --
Justice Hugo L. Black: Why didn't she send one in February or whenever this was, to the place where he said, “You could reach me if you don't reach me at the other place?”
Mr. Jerome M. Feit: Because -- because the board thought, in light of his past conduct, in light of the --
Justice Hugo L. Black: In the light of his past conduct?
Mr. Jerome M. Feit: The light of the fact that he had notified the local board of his current mailing address on some six prior or some five prior occasions during the period 1950 to 1954, that the letter of June 7, 1954 indicated or told the local board that his current mailing address was in Modesto, California and the board --
Justice Hugo L. Black: But I had assumed that when the board goes to look at the issue of final notice to base a conviction of a man in which he could be sent to the penitentiary, look at his entire file and (Inaudible) before they indicted him.
And was there in this file a notice, that they could have had -- could have looked here where they could have mailed it to the address of the parents, the venue, which I would suppose have moved 10 blocks away, would easily the postman could find them very easily.
Mr. Jerome M. Feit: Yes, this letter of June 7 of 1954 was in file, as I had indicated.
But, let me -- let me just state the testimony of Mrs. Haste, the draft board clerk, was in -- in September of 1955, she had mailed this one notice to petitioner at the Modesto address and it never -- it was not returned to the board although the board's return address was on the notification letter.
Again, in October of 1955, an order to report for induction was mailed to the Modesto address, this again was not returned to the local board, and again it had the return address.
Now Mrs. Haste made clear that if these notices, these letters had been return to the board, she would have attempted to contact him at that point, at his parents' old home address.
Now, it's precisely the confusion, we think that this case --
Justice Hugo L. Black: He made it because, he had mailed in some letters as she told him that he is moving from place to place and he happened to be at place where he probably was receiving those letters at that time, the board just assumed that they couldn't get him at the address he has said they could reach him at if they didn't get him at his regular address.
Did the board have a right to assume that?
When he had informed them that he was moving around and he might not be reached there?
Did the board assume merely because they send him two letters at that -- at that address, that it was necessary to try to get him at the address that he had notified them, to try to get him at if they didn't reached him at the regular address?
Mr. Jerome M. Feit: We think the board could assume that because of the -- the other proposition would be that the local board would have the obligation because it had an address on the file.
They had both map in -- the Modesto address and San Diego address in the June 1954 letter to seek out a registrant.
And the registrant can say “Well, I've given you an address, now, it's your job to -- to look me up.”
The regulations make clear -- Selective Service regulations made clear that the failure of a local board to perform a function which they might have an obligation to do -- to perform (Inaudible) set out at the Regulation 1642.3 which says that compliance with procedures of this part, not a condition precedent to prosecution.
Compliance by a local board of any other agency of the Selective Service System would any or all the procedures prescribed by the regulations in this part is not a condition precedent to the prosecution of any person --
Justice Hugo L. Black: Can they -- can they violate a regulation, provide that if they fail to -- to do -- to try to get them at, at the place that he has told them if they try to get him, and they by regulations say that that --
Mr. Jerome M. Feit: Well --
Justice Hugo L. Black: -- they neglect to do that?
Mr. Jerome M. Feit: Well, I -- I think that -- that --
Justice Hugo L. Black: Enables them to prosecute him, is that what you're talking about?
Mr. Jerome M. Feit: If, we think, our position is that -- it was his duty in February 1955 to keep the board advised of an address where mail could reach him.
We agree that in order to support a conviction in this case, the jury must have had sufficient evidence to find that there was -- that the violation was intentional and knowing.
Justice Felix Frankfurter: Mr. Fiet, could you please tell me what was the San Diego address on June 7, 1954?
What was it?
Mr. Jerome M. Feit: I'm sorry --
Justice Felix Frankfurter: I mean -- it means the geographic location.
Mr. Jerome M. Feit: It's 650 11th Street in San Diego.
Justice Felix Frankfurter: And when did they try -- tried to reach him?
When they did try to reach him in 1955?
Mr. Jerome M. Feit: They tried to reach him in September and October of 1955.
Justice Felix Frankfurter: Now, in September and October 1955, was 650 11th Street his San Diego address?
Mr. Jerome M. Feit: No.
Hi -- His parents had moved from that address in Feb --
Justice Felix Frankfurter: So then, the San Diego address that he advised that he could be reached at within a day or two was not the San Diego address at which he was if they tried to get him in September of 1955?
Mr. Jerome M. Feit: That -- that's true.
Chief Justice Earl Warren: But it was a matter of blocks away, wasn't it?
Mr. Jerome M. Feit: I -- I don't -- I don't know the -- the San Diego area.
Chief Justice Earl Warren: So we can count anyway.
Mr. Jerome M. Feit: Yes.
I would imagine it was 20 blocks.
Justice Felix Frankfurter: It wasn't -- it wasn't his address.
Mr. Jerome M. Feit: It's precisely our proposition.
Justice Hugo L. Black: Suppose he had move from 6 -- 11th or 16th, that wouldn't have been his address either, would it?
Mr. Jerome M. Feit: It's true.
Justice Charles E. Whittaker: Well, let me ask you, on -- on February 1, the date named in -- in the indictment, has there been any change of address?
Mr. Jerome M. Feit: No.
Justice Felix Frankfurter: (Inaudible)
Mr. Jerome M. Feit: No.
As I have indicated before we think the indictment is through the entire month of February.
I see that my time is up.
Chief Justice Earl Warren: Yes.
Rebuttal of Hayden C. Covington
Mr. Hayden C. Covington: (Inaudible) finish in a minute.
(Inaudible) to finish in minutes to --
Chief Justice Earl Warren: Yes, yes, yes -- no -- no, you -- you finish -- you finish your argument.
Mr. Hayden C. Covington: On this ruling by Judge Carter limiting it to February 1st, or rather on page 92, you will notice that when he had made the remark time to extend it, rather he was trying to limit as on our proof.
We want to get the entire draft board file in the record.
And I stated there, except for the ruling of the court, I was trying to get in this September 1956 letter where he was reviewing all the facts with the board showing that he had written his letter from Los Angeles and made these changes, and I took the exception to the ruling.
And then later on, the court says on its ruling that what he did thereafter has nothing to do with the charge made as to the bottom of page 92.
And then -- we were then talking about the August and September letter of 1956, I was trying to get that in evidence and that ruling was limited to that particular point.
Now, I would like to have the Court bear in mind that this third -- when the board mailed the card and the order, the old cover sheet that had this warning flag to see the letter on the inside that would give the home address had disappeared from the cover sheet because the second and third cover sheet that was used do not have this warning notation on it.
And if it had been on the third one that was used, the clerk would have turned inside and got the letter and seen specifically that that had reference to the parents' address because she so testified that the reason she put that notation on the original cover sheet was to remind her that he could always be reached in care of his parent's current address, her testimony was to that effect.
Now, the San Diego address on 11th Street was current until February the 1st that was home address at which time he -- when they moved, he mailed this card from Los Angeles, and had corroborating testimony but they say that's an issue of fact because of credibility and I don't know that I can strongly debate that unless I can say that Beal's testimony supporting it plus the receipt of the woman's letter would make undisputed.
But be that as it may, leaving the Los Angeles card out, notifying of the change of the home address, he take the June 7th letter that gave the old home address that was good up until the 21st.
Justice Charles E. Whittaker: On what date?
Mr. Hayden C. Covington: 21st of February.
Justice Charles E. Whittaker: 1955?
Mr. Hayden C. Covington: Yes, sir and then the filling of the forwarding card by the father with the post office would have ensured or at least gave reasonable basis for the belief under the Bartchy decision by Venus that the mail would have reached him if it had been sent to that old address, it would have been logically forwarded.
Another thing, the record shows that in February, he's employer was still in Modesto and the employer would have forward it to the San Diego address to the parents.
And in -- on the top of that, during this time, he was out on his bond in first indictment of FBI, the Marshall, of the state headquarters of the Selective Service, all communicated with him at the San Diego address and reached him and it's ridiculous to assume that he had an intention to hide from this draft board and deceive them about an address when he knew that he would have to exhaust his remedies by appealing if he got it by classification card and that he have to report and refuse to submit.
It is ridiculous to assume that he would have taken this course of conduct and deliberately got himself beyond the reach of his remedies.
Much more could be said but the red light is on, gentlemen and I submit the case unless there are questions upon the brief.
Chief Justice Earl Warren: I would like to ask you just one question, is there anything in the record to show that the mail of the -- of the parents was forwarded from their 10th Street address to their 30th Street address?
Mr. Hayden C. Covington: Your Honor, no.
Chief Justice Earl Warren: Is it not --
Mr. Hayden C. Covington: It -- there was no cross-examination upon it and I -- they have no --
Chief Justice Earl Warren: But they -- they continue to live there and --
Mr. Hayden C. Covington: -- to go into that any further than the filing of the forwarding card by the father for the family which have included --
Chief Justice Earl Warren: Oh -- oh, he did file a forwarding card?
Mr. Hayden C. Covington: Well, he filed a forwarding card with the San Diego Post Office the very next day after this 21st of February.
The father did in San Diego.
The evidence shows that.
Chief Justice Earl Warren: For -- for the family?
Mr. Hayden C. Covington: For the family.
Chief Justice Earl Warren: Yes.
Mr. Hayden C. Covington: And the -- the mail would have reached Venus there but --
Chief Justice Earl Warren: Yes.
Very well, gentlemen.