203 F.2d 884 (5th Cir. 1953), 14105, Wardlaw v. United States

Docket Nº:14105.
Citation:203 F.2d 884
Case Date:April 17, 1953
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 884

203 F.2d 884 (5th Cir. 1953)




No. 14105.

United States Court of Appeals, Fifth Circuit.

April 17, 1953

Page 885

Will A. Morriss, Sr., San Antonio, Tex., Clyde W. Mays and Dave T. Miller, Fort Worth, Tex., Howard Dailey and Clyde G. Hood, Dallas, Tex., Hood & Dailey, Dallas, Tex., Mays & Mays, Fort Worth, Tex., Morriss, Morriss, Boatwright & Lewis, San Antonio, Tex., of counsel, for appellant.

R. Daniel Settle, Sp. Asst. to U.S. Atty., Frank B. Potter, U.S. Atty., and Cavett S. Binion, Asst. U.S. Atty., Fort Worth, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

RIVES, Circuit Judge.

The appellant was convicted of willfully and knowingly attempting to defeat and evade a large part of the income tax due and owing by him and his wife for the years 1948 and 1949, 26 U.S.C.A. 145(b). 1 The appellant admitted that he failed to report the larger portion of his income and reported only his salary as Assistant District Attorney of Tarrant County, Texas. He denied that his conduct was willful or that he had any evil motive or intent to defraud, and insisted that he acted under a bona fide misconception of the income tax law. In wholly failing to report his fees from private law practice, he claimed that he thought his deductions would more than offset those fees and that it was not necessary to report them. It was further his understanding, so he claimed, that income invested in capital assets need not be reported until the property was sold.

It is now settled that 'willfully', as used in this offense, means more than intentionally or voluntarily, and includes an evil motive or bad purpose, so that evidence of an actual bona fide misconception of the law, such as would negative knowledge of the existence of the obligation, would, if believed by the jury, justify a verdict for the defendant. 2

Claimed ignorance, however, could hardly be established so conclusively as to justify a directed verdict. It seems to be conceded that the appellant intentionally, though (he claims) mistakenly, failed to include a large part of his income in his return. That is more than

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the mere failure to return income and pay the tax on it held insufficient to constitute the offense of willfully attempting to defeat and evade the income tax in Jones v. United States, 5 Cir., 164 F.2d 398. 3 Further, the Government offered evidence from which the jury might have concluded that appellant's return for a previous year, and his treatment of income from sales of other assets were inconsistent with his claimed misconception of the law; and the Government insists with some force that appellant's conduct in reporting only his salary as a public official was because he knew that that salary was a matter of public information. It was for the jury to say whether the appellant had the requisite criminal intent, that is whether he willfully...

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