Beaty v. United States

• Decision Date: 07 April 1953
• Docket Number: No. 6546.,6546.
• Citation: 203 F.2d 652
• Parties: BEATY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

203 F.2d 652 (1953)

BEATY v. UNITED STATES.

No. 6546.

United States Court of Appeals Fourth Circuit.

Argued March 16, 1953.

Decided April 7, 1953.

C. W. Higgins, Winston-Salem, N. C., W. M. Nicholson, Charlotte, N. C. and R. Gregg Cherry, Gastonia, N. C., for appellant.

Thomas A. Uzzell, Jr., U. S. Atty., Asheville, N. C., for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal from a conviction and sentence under an indictment charging income tax evasion in violation of the provisions of section 145(b) of Title 26 of the United States Code. Reversal is asked on the ground that the defendant was not arraigned, that verdict of acquittal should have been directed on the evidence, that there was error in the admission and rejection of testimony, that the United States Attorney asked improper questions, and that the trial judge improperly instructed the jury as to the result of an inquiry conducted in its absence, improperly commented on the duty of defendant to keep correct records and improperly urged the jurors to agree. We find no merit in any of the grounds urged. Certainly there is nothing in any of them of such a prejudicial nature that it would justify the granting of a new trial.

The first ground urged is that the court proceeded with the trial without a formal arraignment and without a plea to the bill of indictment. This contention seems to be based upon the fact that the arraignment and plea do not appear in the stenographer's notes of the trial. The District judge has specifically found, however, that plea of not guilty was duly entered by defendant upon his arraignment in open court, that such plea was entered by the clerk upon his original record and was referred to by the judge in his charge to the jury. We are bound by this finding; but, even if this were not so, it is well settled that arraignment and plea were waived by going to trial. Garland v. State of Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772; Rulovitch v. United States, 3 Cir., 286 F. 315; Williams v. United States, 6 Cir., 3 F.2d 933; King v. United States, 6 Cir., 25 F.2d 242.

Equally without merit is the contention that the evidence was not sufficient to take the case to the jury. In the tax years 1945, 1946 and 1947, defendant was engaged in the taxicab business in the city of Charlotte, North Carolina. He rented a number of taxicabs to drivers at a rental of $10 per day each except on Saturdays and Sundays when the rental was $12 per day each. At the end of each day the drivers were supposed to pay the rental due by them. The rental paid by each was placed in an envelope marked with the number of the taxicab and was checked against yellow check sheets showing the taxicabs in operation and the envelope was then dropped through a slot into a large iron safe. The yellow check sheets were destroyed. From the safe the envelopes containing the rental money were subsequently taken and opened and the contents were supposed to be entered upon defendant's books and deposited in bank. The entries in the books show receipts from the operation of taxicabs of just about enough to cover the costs of operating the business; but they also show operation of the taxicabs for less than a third of the time, whereas the government introduced evidence of the drivers that they were in operation for the greater part of the time and that the rental received therefrom was necessarily a much greater sum than shown by the books. The income tax returns corresponded with the books. An expert witness testified on the basis of the testimony given by these drivers that the rental received by defendant was an amount for each year in excess of the amount shown on the books and reported by defendant and that a computation of income tax due thereon was considerably in excess of the amount reported. It was significant that the entries in the books of receipt of taxicab rental over long periods of time appeared to have been made at the same time and in the same handwriting and that the amounts were uniformly $10 or $12 per day whereas the testimony was that varying amounts were received from time to time. There was also testimony to the effect that defendant had received as rental of buildings and from the sale of cars more than he reported in his tax returns.

The testimony to which we have referred would have been sufficient of itself to take the case to the jury, but it was fortified by other evidence tending to show fraudulent concealment. One Brown, a railroad police officer, testified to having gone late at night to defendant's filling station, after the station had been closed, and having found the defendant sitting before a table on which there was a large sum of money and beside an open iron safe in which there was also a large sum, engaged in counting the money and with a pistol and shot gun at hand to guard it. The officer testified that he asked defendant why he did not deposit the money in the bank and that defendant replied that he did not wish to pay $20 a hundred on it, the clear inference being that he did not deposit it because he wished to avoid income tax. There was testimony also that sometime later a laborer working on defendant's premises dug up a large sum of money, which defendant admitted on the trial was his and which amounted according to his admission to $7,000 or $8,000, although there was evidence that the amount was largely in excess of this. The laborer made off with the money, but defendant complained to the local police and it was eventually recovered. On cross examination defendant refused to say how he had spent it. The evidence as to his having the large sum in the night time and saying that he did not wish to pay $20 a hundred on it, came to light when the money was dug up by the laborer and complaint with regard to its loss was made to the police. The defendant claimed that the buried money had been accumulated by him over a long period before the tax years in question, and he denied making the statement about wishing to avoid paying $20 a hundred; but the questions thus raised were for the decision of the jury. Certainly this with the other evidence to which we have adverted made the case one for the jury's determination.

Defendant complains because the taxicab drivers called as witnesses by the prosecution were allowed to refresh their memories, as to the periods during which they were operating defendant's cabs, by referring to affidavits which they had made and which had been prepared by treasury representatives. These affidavits had been based upon municipal records showing the initial and final dates of the operation of the cabs and the recollection of the witnesses as to the portion of the time within which the cabs had been operated within this period. The matter was one resting very largely in the sound discretion of the trial judge, Buckley v. United States, 6 Cir., 33 F.2d 713, 717; 58 Am.Jur. p. 325; note 125 A.L.R. p. 24; and certainly there was no abuse of discretion in permitting the witnesses to refresh their memories by referring to affidavits which they had made and which, as to the dates involved, were based upon records otherwise in evidence. As to the regularity with which the cabs were operated during the period, it does not appear that there was any need of refreshing of memories as to this and that the witnesses testified with regard thereto from independent recollection.

Objection was made to the ruling of the court in permitting the witness Cline, an expert accountant, who had sat in court and heard the testimony of the witnesses, to testify as to the difference in defendant's income tax which would have resulted from a correct reporting of the income disclosed by this testimony. We think that this was clearly proper since the jury was left free to accept or reject the testimony upon which the testimony of the expert was based and with it that testimony. United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 1241, 87 L.Ed. 1546. In reversing the Court of Appeals in the case cited, the Supreme Court said:

"The court below held that the admission of the testimony of an expert witness regarding Johnson\'s income and expenditures during the disputed period invaded the jury\'s province. The witness gave computations based on substantially the entire evidence in the record as to Johnson\'s income. The Circuit Court of Appeals held that while undoubtedly `a proper hypothetical question could have been framed and propounded\', in fact the witness was not giving answers on the basis of any assumption of hypothesis but as testimony on the `controverted issue\' in the case. 7 Cir., 123 F.2d 111 at page 128. We do not so read the meaning of this testimony. No issue was withdrawn from the jury. The correctness or credibility of no materials underlying the expert\'s answers was even remotely foreclosed by the expert\'s testimony or withdrawn from proper independent determination by the jury. The judge\'s charge was so clear and correct that no objection was made, though, of course, there were exceptions to the refusal to grant the usual requests for charges that were either redundant or unduly particularized items of testimony. The

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