Hartman v. United States, 15382.
Decision Date | 07 June 1957 |
Docket Number | No. 15382.,15382. |
Citation | 245 F.2d 349 |
Parties | Milton D. HARTMAN, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
William J. Becker, Clayton, Mo. (Stanley M. Rosenblum, St. Louis, Mo., was with him on the brief), for appellant.
Forrest Boecker, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., was with him on the brief), for appellee.
Before SANBORN, WOODROUGH and WHITTAKER, Circuit Judges.
Indictment was returned against appellant Milton D. Hartman on February 26, 1952, charging him in two counts with having received two specified items of taxable income in the year 1945, and one such item in the year 1946, all of which he "wilfully and fraudulently" omitted from the income tax returns made by him for those years in attempts to "defeat and evade" the parts of the income tax due from him in respect to the items for the respective years, in violation of 26 U.S.C.A. § 145(b), 1939. He was found guilty and sentenced on both counts, but on appeal to this court was awarded a new trial, 215 F.2d 386. It appeared to this court that evidence, which had been adduced by the government, to the effect that large amounts of taxable income, other than the items charged in the indictment, had been received by the defendant in the years in question and omitted from his tax returns should have been excluded. Also that an instruction complained of was erroneous. But we did not find an insufficiency of competent evidence to require submission of the case to the jury. On the contrary, we said, as to the two items of the first count, that:
215 F.2d 386, 390.
and:
As to the second count, we said that the question whether taxable and unreturned income had resulted to the defendant from the issuance of a certain $12,000 check to the bank by the Hunter-Hartman Corporation for a cashier's check in like amount payable to defendant and cashed by him was a question of fact to be resolved by the jury.
On the second trial upon the same indictment, the defendant was again found guilty on both counts and sentenced and again appeals. He does not complain on this appeal of any ruling of the court in respect to the admission or exclusion of evidence nor of the instructions to the jury, but contends that the court erred in overruling his motion for dismissal made at the beginning of the first trial and repeated on the second trial, and his motion for directed verdict made at the conclusion of all the evidence on the second trial, and that the court erred in imposing the sentence provided in Section 145(b) instead of the lesser sentence provided in 26 U.S.C.A. § 3616 (a), 1939.
We have carefully examined the evidence at the second trial and find no such differences from the disclosures of the first trial as to require a restatement of the facts. We turn directly to the contentions for reversal.
The motion for dismissal made at the commencement of the trial was on the ground that both counts of the indictment were barred by the three year statute of limitations contained in Section 3748(a), 26 U.S.C.A., 1939. Defendant argues that the offense denounced in Section 145(c)1 was identical with the offense charged under Section 145(b) which carries a six year period of limitation and that the three year statute was controlling and had run.
The point was not discussed in our opinion on the first appeal but the ruling of the trial court is supported by the decision of the Court of Appeals of the First Circuit in Gaunt v. United States, 184 F.2d 284, certiorari denied 340 U. S. 917, 71 S.Ct. 350, 95 L.Ed. 662, with which we are in accord as follows:
184 F.2d loc....
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