
    WALLACE v. UNITED STATES.
    No. 11438.
    Circuit Court of Appeals, Fifth Circuit.
    April 25, 1946.
    
      Hayden C. Covington, of Brooklyn, N. Y., and Grover C. Powell, of Atlanta, Ga., for appellant.
    M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.
    Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
   McCORD, Circuit Judge.

After the decision in the case of Estep v. United States, 66 S.Ct. 423, this case comes to us on motion for rehearing.

The facts set it apart from the case of Cahoon v. United States, 5 Cir., 152 F.2d 752, in which we have denied application for rehearing. Here the court called upon defendant, through counsel, to show what he expected to prove. Thereupon defendant offered to prove that he filed with the local board a questionnaire in which he set forth the fact that he was a regular and duly ordained minister. Attached to the questionnaire and made a part thereof were a number of affidavits by members of the congregations that had been served by the defendant, all testifying to the fact that he was a regular and duly ordained minister; that this evidence was before the local board at the time his case was considered for classification, and that there was no other evidence in the file that would show anything to the contrary; the local board placed him in Qass I-A and the Board of Appeals continued him in such class.

The court thereupon ruled that the evidence offered was immaterial, and declined to permit defendant to introduce same.

Under the ruling of the majority opinion in the Estep case we conclude that the decision of the lower court and the decision of this court heretofore rendered affirming that decision should be reversed. Accordingly, the motion for rehearing is granted and the judgment of conviction in all respects is set aside and the cause is reversed and remanded for further proceedings consistent with law.  