Hargrove v. United States, 6943.

• Decision Date: 07 December 1933
• Docket Number: No. 6943.,6943.
• Citation: 90 ALR 1276,67 F.2d 820
• Parties: HARGROVE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

90 ALR 1276, 67 F.2d 820 (1933)

HARGROVE v. UNITED STATES.

No. 6943.

Circuit Court of Appeals, Fifth Circuit.

December 7, 1933.

B. D. Tarlton and L. Hamilton Lowe, both of Corpus Christi, Tex., for appellant.

W. R. Smith, Jr., U. S. Atty., of San Antonio, Tex.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Charged in four counts with willfully failing to make and file a return of income for the years 1928 and 1929, and with willfully and knowingly attempting to defeat and evade the payment of income taxes for those years, Hargrove was convicted on them all. On this appeal he makes three points against his conviction, all turning on the matter of his willfulness: (1) That because of the failure of the proof in this respect, he should have had an instructed verdict; (2) that his statement, offered by the government, contained exculpatory statements which made it error to refuse his requested charge on their effect; and (3) that there was error in refusing the special charge he asked to the effect that willfulness, as used in the act, Revenue Act 1928, § 146 (26 USCA § 2146), implies a criminal intent, a knowledge and purpose to do wrong, and that unless the jury found plaintiff's failures to return and pay to have been with such intent, they must acquit him. A brief statement of the case made by the evidence will make the points clear and lead to their just determination.

In the years in question Hargrove was a county commissioner of Edinburg county; he was also a man of some affairs in the Valley section of Texas. Coming to the border country first in Starr county in early youth, more than thirty years before, he had worked in various positions, engaged in various occupations. At first, though having little education himself, he had taught the rudiments in a little Mexican school, then worked as deputy collector of customs, resigning that position in 1902 or 1903. In 1905 he had come to Hidalgo county, where he had been variously engaged in wood contracting and in the gravel business, but principally in the cattle business. At one time he was chairman of the board of the Mission Bank, and besides having been county commissioner, he was at one time county tax collector. In 1928 and 1929, though in each of these years, in addition to his exempt salary of $200 a month as commissioner, he had received items of income which were taxable aggregating several thousand dollars, on account of which he owed a substantial tax, he neither made a return of his income nor paid any tax for those years. For his defense he relied entirely on his lack of willfulness and wrongful intent, to which he testified at length. Admitting freely both in the statement he gave the income tax officers before the prosecution was begun, and on the stand, that he had received taxable income and that he had failed to report it or pay taxes on it, he persistently asserted both in the statements he gave and on the stand that, ignorant of his duty to file the return and pay, he had not acted with corrupt intent to avoid the payment of the tax or any duty he owed. Over and over again he affirmed that he had had no disposition not to make the return or pay the tax; that he would have done both had he known they were due to be done; and that the sole reason he had not done them was because he did not know he was under that obligation. He testified that he understood and had been told that he was not required to make a return, and that he owed no tax, and that he in good faith believed this to be so.

As to some items paid him by one A. Y. Baker, he testified he had been told by Baker that these items were taxable to Baker, and not to him; that Baker had paid on them and he need make no return of them, and that one Pate, an income tax expert, had confirmed this. As to other items, though he now admits that their receipt by him has been shown, he testified that he kept no books on his cattle and other business and that he has no recollection of ever having received them. That since the records show that he did receive them, he does not deny them, but he does say as to them, that he did not willfully and consciously refuse to return and pay the taxes on them. That the failure to return and pay on them was due to oversight, and his lack of knowledge of what was due from him. That as to some of the items he had been told that they accrued as income in later years and he had paid the taxes on them in those years, while as to others, his failure to pay was due to pure oversight.

Without further detail, it may be said of his testimony that though not very convincing, it did tend to show that not willfully, deliberately, and with corrupt intent, but ignorantly, through lack of information and through inadvertence, he had failed to make his returns and pay the tax, and that if believed, it would completely meet and overcome the charges of willful violation if defendant is right in the view he took that to be willful there must have been more than a failure to make returns and to pay taxes; the failure must have been with corrupt and criminal intent.

The government on its part, entirely independently of and in addition to Hargrove's admission, proved the receipt by him of a considerable taxable income, and his failure to report and pay taxes on it under circumstances amply sufficient to easily support a finding that these failures were willful; that is, with corrupt and criminal intent. There is nothing, then, of substance in defendant's first point, that the verdict should have been directed in his favor. U. S. v. Commerford (C. C. A.) 64 F.(2d) 28; O'Brien v. U. S. (C. C. A.) 51 F.(2d) 193.

Did the court err to his prejudice, as claimed in his second point, in refusing to give the charge he asked on the effect of his exculpatory statements? We do not think it did. Too abstract in form, too deficient in pointing out the part of the long statement offered which was to be taken as exculpatory, and therefore calculated only to confuse and mislead the jury, it was for that reason alone properly refused. Besides, had it been specific enough, its refusal would not have been error. Here the prosecution did not rely alone, or even mainly, on the defendant's statements for conviction. It made out its own case by independent proof. The defendant took the stand on his own behalf, and amplified and reiterated what he had said in his statements as to absence of wrongful motive and intent. If in such a case, his defensive theory arising from his own testimony and coinciding with the exculpatory theory advanced in the admission had been fairly submitted to the jury, that would have been enough. A specific charge on the effect of exculpatory statements, is not demanded, even under the rule in Texas. McKinley v. State, 104 Tex. Cr. R. 65, 282 S. W. 600; Tate v. State, 116 Tex. Cr. R. 340, 31 S.W. (2d) 453; Servina v. State, 109 Tex. Cr. R. 443, 5 S.W.(2d) 510; Jones v. State, 29 Tex. App. 20, 13 S. W. 990, 25 Am. St. Rep. 715; Casey v. State, 54 Tex. Cr. R. 584, 113 S. W. 534, 536; Slade v. State, 29 Tex. App. 381, 16 S. W. 253, 254; McKinney v. State, 48 Tex. Cr. R. 402, 88 S. W. 1012, 1013; U. S. v. Long (C. C.) 30 F. 678. It remains only to inquire whether the defendant did have his defensive theory correctly and fairly submitted. When, inquiring in that regard, we come to the...