221 F.2d 554 (8th Cir. 1955), 14711, Mitchell v. United States

Docket Nº:14711.
Citation:221 F.2d 554
Party Name:David H. MITCHELL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 03, 1955
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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221 F.2d 554 (8th Cir. 1955)

David H. MITCHELL, Appellant,

v.

UNITED STATES of America, Appellee.

No. 14711.

United States Court of Appeals, Eighth Circuit.

May 3, 1955

Rehearing Denied May 31, 1955.

Howard F. Sachs, Kansas City. Mo., Phineas Rosenberg, Harlow B. King and Morelock, Hoskins & King, Kansas City, Mo., were with him on the brief, for appellant.

Joseph L. Flynn, Asst. U.S. Atty., St. Joseph, Mo., Edward L. Scheufler, U.S. Atty., Kansas City, Mo., was with him on the brief, for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This case is before us for the second time pursuant to a judgment of the United States Supreme Court which vacated the judgment of this court and remanded it 'for consideration in the light of Holland v. United States, (348 U.S. 121, 75 S.Ct. 127), Friedberg v. United States (348 U.S. 142, 75 S.Ct. 138), Smith v. United States (348 U.S. 147, 75 S.Ct. 194), and United States v. Calderon (348 U.S. 160, 75 S.Ct. 186). We have not considered the merits of these cases, nor have we determined their relationship to our recent opinions, supra, believing that reexamination by the Courts of Appeals is desirable even in those cases remotely involving the principles laid down in the net worth decisions.'

The case has accordingly been reargued and resubmitted. The basic issues are outlined in our prior opinion reported as Mitchell v. United States, 8 Cir., 208 F.2d 854. They have not been changed by the judgment of the Supreme Court vacating our decision but the case has been remanded for reexamination because it as tried in the District Court 'remotely' involved proof of net income by resort to the so-called net worth theory.

Although defendant interposed no motion for acquittal at the close of all the evidence and saved no exceptions to the instructions as given by the court, he nevertheless on this reexamination urges

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that the evidence was insufficient to sustain the verdict and that the court committed error in certain of its instructions, and in effect now seeks to retry his case de novo in this court. Thus he contends that:

'1. In income tax prosecution based on net worth theory, there was failure of proof when the Government failed to present evidence that alleged increase in assets was attributable to taxable income rather than...

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