
    FANNON v. UNITED STATES.
    No. 11107.
    Circuit Court of Appeals, Ninth Circuit.
    May 21, 1946.
    George B. Grigsby, of Anchorage, Alaska (E. Coke Hill, of San Francisco, Cal., of counsel), for appellant.
    Theron Lamar Caudle, Asst. Atty. Gen., Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., Noel K. Wennblom, U. S. Atty., of Anchorage, Alaska, George R. Gallagher, Atty., Dept. of Justice, of Washington, D. C., and Joseph Karesh, Asst. U. S. Atty., of San Francisco, Cal., for appellee.
    Before GARRECHT, MATHEWS, and ORR, Circuit Judges.
   MATHEWS, Circuit Judge.

John Fannon was indicted, tried, convicted and sentenced and has appealed.

The indictment was based on § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311, which provides that “any person * * * who in any manner shall knowingly fail or neglect to perform any duty required of him under or in the execution of this Act, or rules or regulations made pursuant to this Act, * * * shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by.imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment.”

The indictment charged that “The said John Fannon, on or about the 30th day of October, 1944, within the jurisdiction of [the District 'Court for the Territory of Alaska], then and there being, and being then and there a registrant under the Selective Training and Service Act of 1940, as amended, with the Local Selective Service Board Number One, at Kelso, Washington, and being then and there a transfer registrant with Local' Selective Service Board Number One, at Anchorage, Alaska, did wilfully, knowingly, feloniously and unlawfully fail and neglect to perform a duty required of him under and in the execution of said Act and the rules and regulations made pursuant thereto, in that, having been classified by his local board, the same being Local Board Number One, at Kelso, Washington, in Class 1-A, and having been duly and regularly transferred to Local Board Number One, at Anchorage, Alaska, for induction, and having been theretofore duly ordered and notified by said Local Board Number One, at said Anchorage, to report for induction at Fort Richardson, Alaska, on the 30th day of October, 1944, pursuant to the powers conferred upon such Board by the Selective Training and Service Act of 1940, as amended, and the rules and regulations made pursuant thereto, the said John Fannon did then and there wilfully, feloniously, knowingly and unlawfully fail and neglect to .report at Fort Richardson, Alaska, for induction, as he was required to do by said order.”

Thus, in effect, the indictment charged that Fannon was ordered to report for induction at Fort Richardson, Alaska, on October 30, 1944; that he wilfully, feloniously, knowingly and unlawfully failed and neglected to comply with said order; and that, in so failing and neglecting to comply with said order, he wilfully, feloniously, knowingly and unlawfully failed and neglected to perform a duty required of him under and in the execution of the Selective Training and Service Act of 1940, as amended, SO U.S.C.A.Appendix, § 301 et seq., and rules and regulations made pursuant thereto. No other offense was charged.

To prove the offense charged, it was necessary to prove that Fannon was ordered to report for induction at Fort Richardson, Alaska, on October 30, 1944. There was no such proof. Obviously, a verdict of not guilty should have been directed.

Judgment reversed.  