Sunal and Kulick registered under the Selective Training and Service Act of 1940, 54 Stat. 885, 57 Stat. 597, 50 U.S.C.App. § 301 et seq., 50 U.S.C.A. Appendix, § 301 et seq. Each is a Jehovah's Witness and each claimed the exemption granted by Congress to regular or duly ordained ministers of religion. § 5(d). The local boards, after proceedings unnecessary to relate here, denied the claimed exemptions and classified these registrants as I-A. They exhausted their administrative remedies but were unable to effect a change in their classifications. Thereafter they were ordered to report for induction Sunal on October 25, 1944, Kulick on November 9, 1944. Each reported but refused to submit to induction. Each was thereupon indicted, tried and convicted under § 11 of the Act for refusing to submit to induction. Sunal was sentenced on March 22, 1945, Kulick on May 7, 1945, each to imprisonment for a term of years. Neither appealed.
At the trial each offered evidence to show that his selective service classification was invalid. The trial courts held, however, that such evidence was inadmissible, that the classification was final and not open to attack in the criminal trial. On February 4, 1946, we decided Estep v. United States and Smith v. Unitd States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. These cases held on comparable facts that a registrant, who had exhausted his administrative remedies and thus obviated the rule of Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, was entitled, when tried under § 11, to defend on the ground that his local board exceeded its jurisdiction in making the classification-for example, that it had no basis in fact. 327 U.S. at pages 122, 123, 66 S.Ct. at page 427, 90 L.Ed. 567.
It is plain, therefore, that the trial courts erred in denying Sunal and Kulick the defense which they tendered. Shortly after the Estep and Smith cases were decided, petitions for writs of habeas corpus were filed on behalf of Sunal and Kulick. In each case it was held that habeas corpus was an available remedy. In Sunal's case the Circuit Court of Appeals for the Fourth Circuit held that there was a basis in fact for the classification and affirmed a judgment discharging the writ. 157 F.2d 165. In Kulick's case the Circuit Court of Appeals for the Second Circuit reversed a District Court holding that there was evidence to support the classification, 66 F.Supp. 183, and ruled, without examining the evidence, that since Kulick had been deprived of the defense he should be discharged from custody without prejudice to further prosecution. 2 Cir., 157 F.2d 811. The cases are here on petitions for writs of certiorari, which we granted because of the importance of the questions presented.
The normal and customary method of correcting errors of the trial is by appeal. Appeals could have been taken in these cases, but they were not. It cannot be said that absence of counsel made the appeals unavailable as a practical matter. See Johnson v. Zerbst, 304 U.S. 458, 467, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 146 A.L.R. 357. Defendants had counsel. Nor was there any other barrier to the perfection of their appeals. Cf. Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453. Moreover, this is not a situation where the facts relied on were dehors the record and therefore not open to consideration and review on appeal. See Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 965, 86 L.Ed. 1302; United States ex rel. McCann v. Adams, 320 U.S. 220, 221, 64 S.Ct. 14, 88 L.Ed. 4. And see Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 275, 63 S.Ct. 236, 239, 240, 87 L.Ed. 268, 143 A.L.R. 435. The error was of record in each case. It is said, however, that the failure to appeal was excusable, since under the decisions as they then stood-March 22, 1945, and May 7, 1945-the lower courts had consistently ruled that the selective service classification could not be attacked in a prosecution under § 11. See Estep v. United States, supra, 327 U.S. at page 123, note 15, 66 S.Ct. at page 428, 90 L.Ed. 567. It is also pointed out that on April 30, 1945, we had denied certiorari in a case which sought to raise the same point, and that Estep v. United States, supra, and Smith v. United States, supra, were brought here and decided after Sunal's and Kulick's time for appeal had passed. The argument is that since the state of the law made the appeals seem futile, it would be unfair to those registrants to conclude them by their failure to appeal.