At the close of the evidence defendant moved the Court to dismiss Count II of the indictment for the reason that since this count failed to charge that the defendant did ‘knowingly’ fail to have in his personal possession the registration certificate issued to him by the Selective Service System * * * ‘
this count is fatally defective and ought to be dismissed.
Rule 12 of the Federal Rules of Criminal Procedure requires the defendant to raise, by motion to dismiss before trial, ‘defenses and objections based on defects in the institution of the prosecution or in the indictment * * * other than it fails * * * to charge an offense * * *.’
Fed.R.Crim.P. 12(b)(2). Although the defendant did, in this case, move to dismiss the indictment prior to trial on the basis of certain constitutional questions, it is clear that the grounds here asserted were not urged prior to trial within the meaning of
Rule 12. Consequently, if the defendant is to prevail on this motion, the Court must find that the second count of the indictment does fail to state an offense.