JOHN OTIS SUMRALL, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court held that a registrant cannot use the dismissal of pending misdemeanor charges as a defense to refusing induction, as prosecuting authorities have discretion to dismiss charges.
Appellant was convicted of refusing induction into the Armed Services. He argued his induction order was void due to racial exclusion from the local b…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM:
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 25 (a), subpar. (b), the Petition for Rehearing En Banc is denied.
. On November 14, 1966, appellant filed a civil action [Sumrall v. Kidd, No. 4041, S.D., Miss.] seeking to enjoin his induction on the ground that Negroes bad been systematically excluded from service on all draft boards in Mississippi. The District Court denied a temporary injunction and a panel of this Court denied an injunction pending appeal.
Sumrall took the witness stand in his own defense. He testified that he would have been refused induction if Negroes had been on the draft board and if there had never been any criminal charges pending against him.
. Appellant emphasizes the provisions of the Army Regulations, supra, that defendants who are released from charges “on condition that they will apply for and are acceptable for induction into the Armed Forces are unacceptable” and then points to the mention of such conditions prior to dismissal. Sumrall did not apply for induction.
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Citator
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United States v. Varner, 437 F.2d 1195 (5th Cir. 1971)
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Cleveland Louis Sellers v. United States, 406 F.2d 465 (5th Cir. 1969)
Authorities Cited
- Estep v. United States, 327 U.S. 114 (U.S. 1946)
- The United States v. Honorable W. Harold COX, 342 F.2d 167 (5th Cir. 1965)
- Krum v. Michigan, 381 U.S. 935 (U.S. 1965)
- Cassius Marsellus Clay, Jr. v. United States, 397 F.2d 901 (5th Cir. 1968)