320 F2d 873 Etcheverry v. United States

320 F.2d 873

Frederic Wayne ETCHEVERRY, Appellant,
UNITED STATES of America, Appellee.

No. 18465.

United States Court of Appeals Ninth Circuit.

July 11, 1963.

J. B. Tietz, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, David R. Nissen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES, MERRILL and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

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The only issues raised by appellant on this appeal from his conviction of violating the Universal Military Training and Service Act, 50 U.S.C.A. Appendix § 462, concern the constitutionality of the Act. These issues have been resolved against appellant by prior decisions of this Court, binding upon us.


Appellant asserts that peacetime conscription is beyond the power conferred upon Congress by Article I, Section 8 of the Constitution, and that it deprives appellant of his liberty in violation of the Fifth Amendment; appellant distinguishes Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918), and cases which follow it, as applicable only to draft in time of war. This Court sustained the constitutionality of peacetime conscription in Richter v. United States, 181 F.2d 591 (9th Cir. 1950).


Appellant asserts that the provisions of the Universal Military Training and Service Act relating to conscientious objectors (50 U.S.C.A.Appendix § 456(j)) violate the First Amendment, in that they are laws "respecting an establishment of religion," and discriminate against those who do not believe in a Supreme Being. This Court held to the contrary in Clark v. United States, 236 F.2d 13 (9th Cir. 1956), and George v. United States, 196 F.2d 445 (9th Cir. 1952).