Hoyer v. United States, 15289.

• Citation: 223 F.2d 134
• Decision Date: 21 June 1955
• Docket Number: No. 15289.,15289.
• Parties: Martin HOYER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

223 F.2d 134 (1955)

Martin HOYER, Appellant, v. UNITED STATES of America, Appellee.

No. 15289.

United States Court of Appeals Eighth Circuit.

June 21, 1955.

John F. Lord, Mandan, N. D. (Lord, Ulmer & Murphy, Mandan, N. D., on the brief), for appellant.

Ralph B. Maxwell, Asst. U. S. Atty., Fargo, N. D. (Robert Vogel, U. S. Atty., Fargo, N. D., on the brief), for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

This is an appeal from a judgment convicting appellant on two counts of an indictment which charged him with the crime of attempting to defeat and evade a large part of the income taxes due and owing by him in violation of Section 145(b) of Title 26 U.S.C. In the course of this opinion we shall refer to appellant as defendant. This indictment contained three counts, the counts referring respectively to the calendar years 1946, 1947 and 1948 and also jointly indicted one Chester Ferguson who at the time covered by the indictment was employed by defendant as bookkeepeer and accountant. Count One of the indictment reads as follows:

"That on or about the 15th day of January, 1947, in the District of North Dakota, one Martin Hoyer and one Chester Ferguson did wilfully and knowingly attempt to defeat and evade the income tax due and owing by the said Martin Hoyer to the United States of America for the calendar year 1946 by filing and causing to be filed with the Collector of Internal Revenue for the Internal Revenue Collection District of North Dakota, at Fargo, North Dakota, a false and fraudulent income tax-return wherein they stated that the business operations of the said Martin Hoyer for said year resulted in a loss in the sum of $3,103.33, and that the said Martin Hoyer owed no income tax for said year, whereas, as they then and there well knew, his net income for the said calendar year was the sum of $10,347.61, upon which said net income he owed to the United States of America an income tax in the sum of $1,818.57."

So far as here pertinent Count Two was substantially identical with Count One except as to the year covered and the amount of alleged income and income tax involved.

Defendant at the times here involved was engaged in farming on a large scale, producing potatoes, grain and cattle. For the year 1946 he reported as the result of his farming operations a loss of $3,103.33, and for the year 1947 as the result of these operations he reported a loss of $9,973.63. At the trial government accountants testified that for the year 1946 he had a taxable income of $10,347.61 and for the year 1947 he had a taxable income of $20,866.76. Defendant kept no regular books of account and the government witnesses based their testimony upon an investigation of defendant's bank accounts, cancelled checks and other documentary evidence, employing the so-called receipts and disbursements method.

At the close of the government's evidence in chief and again at the close of all of the evidence produced, defendant challenged the sufficiency of the evidence by interposing a motion for acquittal. These motions were overruled and the case was submitted to the jury on instructions to which no exceptions were saved. The jury found both defendants guilty on Counts One and Two and not guilty on Count Three.

From the judgment entered defendant prosecutes this appeal, in which defendant Ferguson does not join, seeking reversal on substantially the following grounds: (1) the trial court erred in receiving in evidence the government's Exhibit 1, and the government's Exhibit 31; (2) the trial court erred in receiving in evidence the government's Exhibits 32, 33 and 34; (3) the trial court erred in receiving in evidence the government's Exhibit 35; (4) the trial court erred in denying the motions of the appellant to dismiss the case at the close of the government's case and at the close of the entire case.

At the very outset it should be observed that the brief of appellant has been prepared in total disregard of the rules of this court so far as reversal is sought on the ground of alleged errors in the reception of evidence. Rule 11(b), referring to what the brief shall contain, provides among other things as follows:

"A concise statement of the case in so far as is necessary for the court to understand and decide the points to be argued in the brief, giving the pages of the printed record where each fact stated can be found and verified. If a point relates to the admission or exclusion of evidence, the statement shall quote the evidence referred to, and any objections or other equivalent action taken relative thereto, together with the rulings of the court thereon, giving the pages of the printed record on which the quotations appear."

Neither in the statement of the case as printed in the brief nor in the points to be argued will be found a quotation of the evidence objected to, nor the objections thereto, nor the ruling of the court thereon, nor a reference to the pages of the record where the quotations appear. The points to be argued contain no references to the printed record but at best constitute an invitation to search the record for error.

This is an appellate court and criminal cases are not here tried de novo and alleged errors sought here to be reviewed should be pointed out and traced to concrete rulings of the trial court in the manner provided by the rules of this court. Anderson v. Federal Cartridge Corporation, 8 Cir., 156 F.2d 681; Cohen v. United States, 8 Cir., 142 F.2d 861; Zumwalt v. Gardner, 8 Cir., 160 F.2d 298. The record is such as to warrant us in declining to consider in detail the various rulings of the court on the admissibility of evidence here complained of but in view of the importance of the case we have concluded to consider counsels' arguments to the extent of satisfying ourselves that the trial of the defendant has not resulted in a manifest miscarriage of justice.

The government offered in evidence defendant's income tax return for the year 1945 and it was admitted in evidence over the objection that it was immaterial, being without the period covered in the indictment, that it was an attempt "to prove something incorrectly which it cannot prove correctly", and that it was prejudicial. At the time of admitting the exhibit the court admonished the jury that the defendant was not charged with any offense connected with his income tax return for the year 1945, and again in his instructions to the jury the jury was very emphatically advised to the same effect as follows:

"You will recall that Exhibit No. 1, being the defendant Hoyer\'s tax return for the year 1945, was admitted in evidence, although the defendants are not charged in this indictment with having committed a crime with reference to the income tax return covering the defendant Hoyer\'s business operations for the year 1945. It was offered for two purposes:

"First, that the income tax return for 1945 showed a business loss of $766.60, and that this loss was carried over into the year 1946 and was used as a deduction therein, whereas the Government claims that during the year 1945 the defendant Hoyer did not sustain a loss. That is one of the claimed errors by the Government with reference to the 1946 tax return.

"The second theory upon which Plaintiff\'s Exhibit No. 1 was admitted is that it might have some bearing upon the intent of the defendants. Evidence of other occurrences or acts of a similar nature are only admissible in criminal cases where motive, intent or guilty knowledge is in issue, such as it is in this case. You are to consider the evidence with reference to the year 1945 only on the element of intent insofar as the charges in the three counts in the indictment are concerned and should disregard such evidence for all other purposes excepting insofar as it may be applicable to the alleged business loss. You must keep in mind that the defendants are on trial only upon the charges set out in the three counts in the indictment; that is, with reference to the income tax returns for the years 1946, 1947 and 1948."

Defendant chiefly relied upon the fact that he was uneducated, that he kept no regular set of books and that if there were errors in his income tax returns they were due to ignorance or mistake rather than to any purpose on his part to defeat or evade any...