Hastie, Chief Judge, and Seitz and Gibbons, Circuit Judges.*fn* Hastie, Circuit Judge (dissenting).
Sigmund Polites, a selective service registrant, appeals from a conviction of willfully refusing to submit as ordered to induction into the armed forces. The case was tried to the court without a jury, 313 F. Supp. 848.
The essential facts are not in dispute. On this appeal the registrant urges that his motion for judgment of acquittal should have been granted on the theory that his right to essentially fair procedure was violated by his Local Board in rejecting his request for a hardship deferment and classifying him I-A. It has long been recognized that a registrant has such a right and that it may be asserted in defense of a prosecution for refusing to be inducted. Estep v. United States, 327 U.S. 114, 66 S. Ct. 423, 90 L. Ed. 567 (1946); United States ex rel. Berman v. Craig, 207 F.2d 888 (3d Cir. 1953).
On January 11, 1968, at a time when he was classified I-A, the registrant wrote to his Local Board stating that he was the only child of a widowed mother, that his mother had been forced to incur debts in an effort to maintain a decent standard of living and that he now was working and contributing to her support. He asserted that his absence in these circumstances would impose a hardship upon his mother.
The Local Board treated his letter as a request for a hardship deferment and sent the registrant a standard dependency questionnaire. The questionnaire, as executed and promptly returned by the registrant, showed in general terms that his mother earned about $3,000 per year as a clerk and that he was contributing to her at a rate of about $100 per month out of his earnings as a Pepsi-Cola driver-salesman. A supporting statement signed by his mother stated that the insufficiency of her income had resulted in the accumulation of debts and that she suffered residual ill effects of an old knee injury.
On January 29, 1968, the Local Board wrote to the registrant granting him a personal interview and asking that he bring with him a statement, signed by his mother, "of all the income received in your household and all of the expenses of your household."
The registrant appeared before the Local Board on February 20, 1968 and presented his mother's written statement reading as follows:
"To Whom It May Concern: --
The income received in my household are as follows: --
My salary from Williams, Brown and Earle, Inc., also a commission every month from same. My son's salary plus commission from Pepsi Cola Distributing Company of Delaware Valley, Pennsylvania.
The expenses of my household are ...