Hoover v. United States, No. 22313.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBELL and THORNBERRY, Circuit , and FISHER
Citation358 F.2d 87
PartiesSam HOOVER, Appellant, v. UNITED STATES of America, Appellee.
Decision Date09 May 1966
Docket NumberNo. 22313.

358 F.2d 87 (1966)

Sam HOOVER, Appellant,
v.
UNITED STATES of America, Appellee.

No. 22313.

United States Court of Appeals Fifth Circuit.

April 1, 1966.

Rehearing Denied May 9, 1966.


Raeburn Norris, Houston, Tex., Luther E. Jones, Jr., Corpus Christi, Tex., for appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., Louis F. Oberdorfer, Asst. Atty. Gen., Meyer Rothwacks, Joseph M. Howard, Attys., Dept. of Justice, Washington, D. C., William M. Schultz, Asst. U. S. Atty., Woodrow Seals, U. S. Atty., Houston, Tex., for appellee.

Before BELL and THORNBERRY, Circuit Judges, and FISHER, District Judge.

FISHER, District Judge:

This appeal is from a conviction under 26 U.S.C. § 7206(1). Appellant was indicted for making false income tax returns in a four count indictment, with each count relating to one of the four years, 1957 through 1960. The jury found appellant guilty on all four counts and the trial Court assessed a fine of $2,500.00 on each count and imposed a sentence of two years on each count, said sentences to run consecutively for a period of eight years. The Indictment was drafted in the language of the statute, 26 U.S.C. § 7206(1), and the appellant

358 F.2d 88
raises the following assignment of errors on appeal

1. The counts of the indictment fail to allege an offense.

2. The trial Court advised the jury in effect that there had been, as to each count, a concession by appellant establishing the element of willfulness.

3. The trial Court failed to instruct the jury on all of the essential elements of each offense.

The District Court was correct in denying appellant's motion to dismiss the Indictment because the Indictment alleges the offense substantially in the language of Section 7206(1), which contains all of the essential elements of the offense and is thus sufficient within the meaning of Rule 7(c), Federal Rules of Criminal Procedure. An indictment alleging an offense substantially in the language of the statute is sufficient unless the words of the statute do not contain all of the essential elements of the offense. Russell v. U. S., 1962, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; Reynolds v. U. S., 225 F.2d 123 (5 Cir. 1955) cert. den. 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 (1955).

As to the second contention, appellant has seized upon one sentence of the charge and isolated it as error, the particular sentence being, "It must be shown that there was a wilful making and subscribing, that is, signing of an income tax return by the defendant. It is conceded that was the case in all four years."

We do not agree that this sentence taken in context with the entire charge excuses the jury from finding beyond a reasonable doubt "wilfulness" on the part of the appellant in the commission of the said offenses. That such a charge had, or might have had, any effect upon the jury is a rather strained argument. No objection to the Court's charge was made and it can...

To continue reading

Request your trial
24 practice notes
  • U.S. v. Gaudin, No. 90-30334
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 21 Junio 1994
    ...574 F.2d 232, 235 (5th Cir.1978) (same); United States v. Haynes, 573 F.2d 236, 240 (5th Cir.1978) (same); Hoover v. United States, 358 F.2d 87, 89 (5th Cir.1966) (same); United States v. Whyte, 699 F.2d 375, 379 (7th Cir.1983) (same); United States v. Strand, 617 F.2d 571, 573 (10th Cir.19......
  • Hoover v. Beto, No. 29587.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 18 Diciembre 1972
    ...States District Court for the Southern District of Texas for making false income tax returns. See Hoover v. United States, 5 Cir. 1966, 358 F.2d 87, cert. denied, October 1, 1966, 385 U.S. 822, 87 S.Ct. 50, 17 L.Ed.2d 59. I do not know what sentence Hoover is presently serving, but I do not......
  • Goodwin v. Comm'r of Internal Revenue , Docket No. 2087-77.
    • United States
    • United States Tax Court
    • 31 Octubre 1979
    ...section 7206(1). Schepps v. United States, 395 F.2d 749 (5th Cir. 1968), cert. denied 393 U.S. 925 (1968); cf. Hoover v. United States, 358 F.2d 87, 88-89 (5th Cir. 1966), cert. denied 385 U.S. 822 (1966). Here, the indictment under section 7206(1) charges that petitioner willfully filed a ......
  • U.S. v. Tsanas, No. 341
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 24 Abril 1978
    ...requires proof that the defendant does not believe the tax return to be true as to every "material" matter. See Hoover v. United States, 358 F.2d 87 (5 Cir.), cert. denied, 385 U.S. 822, 87 S.Ct. 50, 17 L.Ed.2d 59 (1966). Whether, given the facts of this case, it would be possible for a jur......
  • Request a trial to view additional results
24 cases
  • U.S. v. Gaudin, No. 90-30334
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 21 Junio 1994
    ...574 F.2d 232, 235 (5th Cir.1978) (same); United States v. Haynes, 573 F.2d 236, 240 (5th Cir.1978) (same); Hoover v. United States, 358 F.2d 87, 89 (5th Cir.1966) (same); United States v. Whyte, 699 F.2d 375, 379 (7th Cir.1983) (same); United States v. Strand, 617 F.2d 571, 573 (10th Cir.19......
  • Hoover v. Beto, No. 29587.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 18 Diciembre 1972
    ...States District Court for the Southern District of Texas for making false income tax returns. See Hoover v. United States, 5 Cir. 1966, 358 F.2d 87, cert. denied, October 1, 1966, 385 U.S. 822, 87 S.Ct. 50, 17 L.Ed.2d 59. I do not know what sentence Hoover is presently serving, but I do not......
  • Goodwin v. Comm'r of Internal Revenue , Docket No. 2087-77.
    • United States
    • United States Tax Court
    • 31 Octubre 1979
    ...section 7206(1). Schepps v. United States, 395 F.2d 749 (5th Cir. 1968), cert. denied 393 U.S. 925 (1968); cf. Hoover v. United States, 358 F.2d 87, 88-89 (5th Cir. 1966), cert. denied 385 U.S. 822 (1966). Here, the indictment under section 7206(1) charges that petitioner willfully filed a ......
  • U.S. v. Tsanas, No. 341
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 24 Abril 1978
    ...requires proof that the defendant does not believe the tax return to be true as to every "material" matter. See Hoover v. United States, 358 F.2d 87 (5 Cir.), cert. denied, 385 U.S. 822, 87 S.Ct. 50, 17 L.Ed.2d 59 (1966). Whether, given the facts of this case, it would be possible for a jur......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT