Benham v. United States, 14657.

• Decision Date: 03 September 1954
• Docket Number: No. 14657.,14657.
• Parties: C. G. BENHAM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

215 F.2d 472 (1954)

C. G. BENHAM, Appellant, v. UNITED STATES of America, Appellee.

No. 14657.

United States Court of Appeals Fifth Circuit.

September 3, 1954.

Muckleroy McDonnold, San Antonio, Tex., George O'Brien John, Houston, Tex., Leonard Brown, San Antonio, Tex., for appellant.

Charles F. Herring, U. S. Atty., Thomas E. James, Asst. U. S. Atty., Austin, Tex., for appellee.

Before HUTCHESON, Chief Judge, RIVES, Circuit Judge, and WRIGHT, District Judge.

RIVES, Circuit Judge.

The appellant was tried upon an indictment containing four counts, each charging that he did wilfully and knowingly attempt to defeat and evade income taxes in violation of Section 145 (b), Title 26, United States Code. The indictment included two counts for each of the years 1946 and 1947, covering the separate returns filed by the defendant and by his wife. The jury found the defendant not guilty under the two counts covering the year 1946, but guilty under the third and fourth counts covering the year 1947. The court sentenced the defendant under the third count to imprisonment for a period of three years and to pay a fine of $5,000.00, and under the fourth count to one year imprisonment and a fine of $5,000.00, the sentence to begin at the expiration of the sentence under the third count. A motion for new trial having been overruled, this appeal followed. Of the numerous specifications of error, we find it necessary to discuss but two.

The first specification questions the sufficiency of the evidence to support the verdict as to each count. The defendant moved for a judgment of acquittal at the close of the Government's evidence, but failed to move for a judgment of acquittal at the close of all the evidence. Upon such a record the appellate court will not consider the objection that the verdict is not supported by the evidence except to prevent a miscarriage of justice. Ansley v. United States, 5 Cir., 135 F.2d 207, 208; Battle v. United States, 92 U.S.App.D.C. 220, 206 F.2d 440, 441; Demetree v. United States, 5 Cir., 207 F.2d 892, 894.

The Government sought to convict the defendant by proving increases in his net worth corroborated by evidence showing specific items of income not reported. Without detailing the evidence, we think it sufficient to say that, insofar as the third count is concerned, in our opinion the evidence of the Government if believed by the jury sustains the verdict of guilty. On the other hand, there was no evidence to support a conviction under the fourth count charging that the defendant "did wilfully and knowingly attempt to defeat and evade a large part of the income tax due and owing by the said Ethel H. Benham to the United States of America for the calendar year 1947, by filing and causing to be filed with the Collector of Internal Revenue * * * a false and fraudulent income tax return for and on behalf of the said Ethel H. Benham * * *." While the returns show on their face that the joint community income of the husband and wife was determined and divided in half for tax purposes, that fact alone does not suffice to establish that the husband either filed or caused to be filed the wife's separate return. That return was not signed by the husband, but was signed by the wife and by the accountant who prepared it, and the evidence is entirely consistent with the theory that they were the only ones responsible for its filing. The husband's erroneous records may have accounted for the errors in the wife's return, but the crime was not complete until the return was filed, and to be guilty under the fourth count the husband must either have filed his wife's return or have caused it to be filed. There is no evidence that he did either. The sentence, however, under each count was separate, and the defendant would still be subject to the specific sentence under count three if the record were otherwise free from error. Blitz v. United States, 153 U.S. 308, 318, 14 S.Ct. 924, 38 L.Ed. 725.

The argument of counsel for the Government is set out in full in the record. The defendant interposed no objections and made no motions to instruct the jury to disregard any part of the argument, but appeals for reversal on the ground that improper argument was so grossly prejudicial that the harm could not be removed by objections or instructions, and that under such circumstances there was no duty on the part of a defendant in a criminal case to move for a mistrial. After careful consideration, we are constrained to agree with the appellant's position. A few illustrative excerpts from the argument are set forth in the footnote.¹

Each case stands upon its own peculiar facts and circumstances as to whether a defendant has been afforded a fair trial. It sometimes becomes the duty of the trial judge to stop counsel's discourse without waiting for an objection. Viereck v. United States, 318 U.S. 236, 248, 63 S.Ct. 561, 87 L.Ed. 734; De Bonis v. United States, 6 Cir., 54 F.2d 3, 5. Whenever this Court is of the opinion that a defendant has been denied a fair trial, it must set aside the judgment of conviction.

"`The United States Attorney is the representative not of an ordinary party to a

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