Armstrong v. United States
Decision Date | 18 January 1956 |
Docket Number | No. 15381.,15381. |
Citation | 228 F.2d 764 |
Parties | O. K. ARMSTRONG, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Horace S. Haseltine, Springfield, Mo. (Harold T. Lincoln, Springfield, Mo., was with him on the brief), for appellant.
Kenneth C. West, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief), for appellee.
Before SANBORN, JOHNSEN and VAN OOSTERHOUT, Circuit Judges.
O. K. Armstrong entered a plea of not guilty to an indictment in three counts, each of which charged him, under Section 145(b) of Title 26 U.S.C., with having wilfully attempted to defeat and evade income taxes owed the United States by filing a false return. The first count related to his income tax for 1947, and the following two counts related to his 1948 and 1949 taxes, respectively. He was tried to a jury, which returned a verdict of guilty upon each count. The printed record shows that "on the verdict of guilty the Court assessed a fine of $500.00 on each of the three counts, making a total fine of $1,500.00 and costs on execution." If this was a general sentence upon all three counts it would only be necessary for this Court to ascertain whether the defendant was properly convicted under any one of the three counts, since the total fine assessed did not exceed that which could have been assessed under a single count.1 We assume, however, that the sentence was not general and that if the defendant was improperly convicted under any count, the fine under that count would have to be vacated and a new trial directed as to that count.
Two questions are presented for review: (1) whether the District Court erred in failing to give an instruction requested by the defendant which related solely to the third count of the indictment; and (2) whether the Court abused its discretion in refusing to grant the defendant a new trial upon the ground that the jury's verdict was a compromise.
We think the first of these questions was not properly preserved for review. The defendant had requested three instructions. The first had to do with the deductibility of expenses incurred by him in connection with certain speaking engagements. The second related to the deductibility of expenses incurred by him on a trip to South America in December of 1949. The third instruction requested read as follows:
"The court instructs the jury that if you find and believe from all the evidence that the defendant received a Twenty-five hundred dollar ($2500) check from the Reader\'s Digest The Reader\'s Digest Association, Inc. on or about November 4, 1949, and if you further find and believe that such check was delivered to the defendant without any services or other consideration having been rendered therefor in the past or anticipated in the future then such check is to be considered a gift and not taxable income, and as a gift, if you so find, it need not have been reported as income on the return of the defendant in the year in which it was received; and this is true even though the Reader\'s Digest may have carried said check on its records as a bonus, if you so find the defendant had no knowledge thereof."
The check referred to in the third of the requested instructions was one which the defendant had received in 1949 from the Reader's Digest. His testimony was that it was a nontaxable gift, and therefore had not been included as taxable income in his return for 1949. The Government claimed that it was a taxable bonus. The Reader's Digest had reported it as a bonus and had taken a tax deduction for it. With respect to this matter the court instructed the jury as follows:
By these instructions the jury was given to understand that, under the evidence, the check for $2,500 was a part of the taxable income of the defendant for the year 1949 and was properly includable as such in his return for that year, but that if he believed it to be a gift, as he had testified, and therefore had not included it in taxable income, he could not, because of his failure to include it in his return, be found guilty of a wilful attempt to evade his income taxes for 1949, as charged in the third count of the indictment.
When the Judge had completed his charge, he asked counsel, "Are there any exceptions to the charge?" Counsel for the defendant said, "Note our objections to the failure of the Court to give the instructions as submitted by the defendant." The Judge said, "Yes, Is that all?" Counsel for the Government said, "I haven't seen them, but I guess it is all right." The Judge replied, "I think I gave them in substance."
Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides:
Apparently no copy of the defendant's requests was furnished counsel for the Government. In its brief the Government complains of this omission on the part of the defendant. The defendant in his brief says: ...
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...aff'd 437 F.2d 57 (2nd Cir. 1971). Other circuits have also continued to follow this rule. See, e. g. Armstrong v. United States, 228 F. 2d 764, 769 (8th Cir.), cert. denied, 351 U.S. 918, 76 S.Ct. 710, 100 L.Ed. 1450 (1956); Rakes v. United States, 169 F.2d 739, 745 (4th Cir.) cert. denied......
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