Arnold v. United States, 7584.

• Decision Date: 14 January 1935
• Docket Number: No. 7584.,7584.
• Citation: 75 F.2d 144
• Parties: ARNOLD v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

75 F.2d 144 (1935)

ARNOLD v. UNITED STATES.

No. 7584.

Circuit Court of Appeals, Ninth Circuit.

January 14, 1935.

Walter L. Tooze, Jr., Wilson H. Scott, and Robert T. Jacob, all of Portland, Or., for appellant.

Carl C. Donaugh, U. S. Atty., and Edwin D. Hicks, Asst. U. S. Atty., both of Portland, Or.

Before WILBUR and GARRECHT, Circuit Judges, and ST. SURE, District Judge.

WILBUR, Circuit Judge.

The appellant was convicted upon the third count of an indictment charging him with willfully and knowingly failing to make return of income as provided by law for the calendar year 1930. The indictment recites the requirement of the statute that the return be made on or before the 15th day of March, 1931, and alleges that between the close of the calendar year of 1930 and the 15th day of March, 1931, the defendant willfully failed to make the return, and that on the 15th of March, 1931, he willfully failed and refused to make the return required by law. The indictment was returned on the 30th day of March, 1934. The defendant pled not guilty, and the case went to trial.

At the close of the evidence the defendant moved for a directed verdict of not guilty upon count 3, on the ground that the statute of limitations had run against the prosecution on that count, stating that: "The indictment shows that it was returned April, 1934 March 30, 1934, whereas the time of filing this return was the 15th day of March, 1931, and the three year limitation would be the 15th of March, 1934." This motion was denied, and the request by the defendant that the jury be instructed to return a verdict of not guilty on count No. 3 was also denied. An alternative request was made by defendant for an instruction concerning the statute of limitations as follows: "The statute of limitations in this case, so far as Count Number Three is concerned, is three years. By Count Three of the indictment, the defendant is charged with the wilful failure to file an income tax return for 1930. You are instructed that under the law, if in fact defendant was required to file an income tax return for the year 1930, it was his duty to file same on or before the 15th day of March, 1931. If he made up his mind wilfully not to file this return on the 15th day of March, 1931, the statute of limitations would run against any prosecution for such offense upon the expiration of three years from that date, or on March 15th, 1934. If he had such intent prior to March 15, 1931, or subsequently thereto, the statute would commence to run as of the date he so made up his mind not to file such return. As to when he so made up his mind not to file such return, if in fact any return was required, is a question of fact for you to determine. The indictment in this case was not returned until the 30th day of March, 1934, or more than three years after March 15th, 1931, and therefore, if you find from the evidence that the defendant made up his mind and with wrongful purpose not to file the return at any time prior to the 15th day of March, 1931, then it would be your duty to acquit the defendant upon Count Three of the indictment."

The court refused to give the requested instruction, but in lieu thereof gave an instruction on that subject in part as follows:

"Now as to time, it is not necessary that the government prove that the act was committed, if any, or the violation of the law, if any, was committed at the exact time named in the indictment. It is sufficient if it shall have been committed within the time described by the statute of limitations, and as to that, as to Counts One and Two, there is no question. As to Count Three, there is a slightly different situation. The statute of limitations in that case is three years. The indictment was returned upon the 30th day of March, 1934, and the return was first due, under the statute, on the 15th day of March, 1931. The statute of limitations is, as I say, three years prior to the finding of the indictment, and if therefore you should find that the violation if any, was committed over three years before the indictment was returned, then you would be required to find a verdict of not guilty upon Count Three. However, in that regard, I must instruct you that the filing of an income tax return, if required, under all the circumstances, is a continuing duty, and that the question of whether or not the defendant filed the tax return within the year 1931, was continuing upon him, and therefore if you find there was a violation of that, you will determine whether or not he failed to file the return within three years prior to the finding of the indictment. However, I take it that duty was only enjoined upon him during the year 1931.

"To the failure of the court to give said requested instruction Numbered IV above, and to the giving by the Court of the instruction as given, the defendant saved no exception."

The bill of exceptions states: "Evidence was introduced by the plaintiff in support of his plea of `Not guilty' to said Count Three of said indictment. That for the purpose of this bill of exceptions, the only evidence in the...