Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
An indictment was returned against Head, charging him with failure and refusal to submit to induction into the land or naval forces of the United States for non-combatant service. The jury returned a verdict of guilty and he was sentenced to the custody of the Attorney General for imprisonment for a period of three years.
On September 16, 1948, Head registered with Local Board No. 16,*fn1 Comanche County, Oklahoma. He did not sign Series XIV, Conscientious Objection to War, in his classification questionaire. On May 13, 1949, the Local Board classified him as I-A. Notice of such classification was mailed to Head on May 19, 1949. On October 31, 1950, he was notified to report for his physical examination. On November 7, 1950, he requested a transfer to California for physical examination. On November 10, 1950, Head, for the first time, requested the special form for a conscientious objector. Following his physical examination and on November 26, 1950, he was notified that he had been found acceptable for induction into the armed services.
On the special form, which Head filed with the Local Board on December 13, 1950, he stated that by reason of his religious training and belief he was opposed to participation in war in any form and further, that he was conscientiously opposed to participation in non-combatant training or service in the armed forces, and claimed deferment as provided in § 6(j) of the Selective Service Act of 1948, 50 U.S.C.A.Appendix, § 456(j). On January 4, 1951, the Local Board changed Head's classification from I-A to I-A-O. Head was notified of such change in classification and on January 10, 1951, perfected an appeal to the Appeal Board for the State of Oklahoma. On January 24, 1951, the Appeal Board determined that Head should not be classified in either I-A-O or IV-E and forwarded Head's file to the Department of Justice for an advisory recommendation. The Department of Justice made an exhaustive investigation. An opportunity was afforded Head to appear before R. A. Belisle, Hearing Officer for the Western District of Oklahoma. Head did not appear before the Hearing Officer. On June 27, 1951, the Hearing Officer recommended that Head be classified as I-A-O, and that if he should be inducted into the land or naval forces that he be assigned to non-combatant duties. The Department of Justice, by a letter dated July 23, 1951, concurred in that recommendation. On October 10, 1951, the State Appeal Board sustained the action of the Local Board in classifying Head as I-A-O. Notice of such classification was mailed to Head on October 16, 1951. On November 20, 1951, he was ordered to report for induction. On December 4, 1951, he reported to the Induction Center at Oklahoma City and refused to be inducted into the armed forces of the United States. Following his oral refusal to be inducted he made a written statement, reading as follows: "I refuse to be inducted into the armed services of the United States." At the trial Head admitted that he had refused to be inducted into the armed forces of the United States.
Head's father and mother were reared in the Catholic church. In 1949, Head moved to California. In March, 1950, he became a member of the Church of Christ at Waterford, California. In the special form filed with the Local Board, he made the following answers to the following questions:
"3. Explain how, when, and from whom or from what source you received the training and acquired the belief which is the basis of your claim made in Series I above.
"How? By the teaching of the church. When? Since I have been a member of the church. From what source? From the preachers and teachers of the church.
"4. Give the name and present address of the individual upon whom you rely most for religious guidance.
"T. F. Thomasson, Waterford, California."
Thomasson was the minister of the Church of Christ at Waterford. He was interviewed during the course of the investigation referred to above, and stated that the teaching of the church at Waterford was that a person should not engage in carnal warfare, which meant the bearing of arms in time of war and the killing of other people, but that such church did not teach it was wrong to engage in non-combatant military duties and that "the church had no objection to a member" engaging in non-combatant work.
The sole defense urged at the trial was that there was no basis for classifying Head as I-A-O. Counsel for Head asserted "A Selective Service registrant who professes objection to combatant and non-combatant service alike may not be classified I-A-O if the Selective Service System considers him sincere in his professed objections; it may not discount his sincerity on one hand and credit it on the other." But Head asserted that his religious beliefs were based upon the teachings of the Church of Christ at Waterford, and that the source of such teachings was the minister of that church, and that he relied for religious guidance upon such minister. Thomasson, the minister of such church, stated that while the church taught that its members should not engage in carnal warfare, that is, the bearing of arms in time of war and the killing of other people, that it also taught that the rendering of noncombatant military service was not wrong. Those facts, we think, justify the Department of Justice and the Hearing Office in recommending that Head be classified in I-A-O, and constituted a basis in fact for the action of the Local Board in so classifying him.
In Warren v. Abernathy, 10 Cir., 1952, 198 F.2d 622, 626, we said:
"In reviewing the action of a local board in fixing a classification, the courts may not weigh the evidence to determine whether the classification made by the local board was justified. The decisions of a local board, made in conformity with the regulations, are final, even though they may be erroneous. It is only when there is no basis in fact for the classification which the local board gave ...