Lurding v. United States, 10858.
| Decision Date | 01 February 1950 |
| Docket Number | No. 10858.,10858. |
| Citation | 179 F.2d 419 |
| Parties | LURDING v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
A. Scott Hamilton, Louisville, Ky., for appellant.
John A. Fulton, Louisville, Ky., David C. Walls & Ben T. Cooper, Louisville, Ky., on the brief, for appellee.
Before SIMONS, ALLEN and MARTIN, Circuit Judges.
The appellant was convicted for violation of Title 26, U.S.C.A. § 145(b), in that he wilfully attempted to defeat and evade a large part of his income taxes for the years 1942 through 1946. He was acquitted on the first count of the indictment but was sentenced to fine and imprisonment on each of the other counts. There was substantial evidence to take the case to the jury although the defendant vigorously contended that the understatement of his income during the several tax years was not made knowingly or wilfully, because he depended on an outside accountant to prepare his returns and believed them to be accurate. His grievances are based entirely upon alleged erroneous instructions of the court to the jury.
The appellant operated a restaurant in Louisville, for which he kept no adequate books, and the government built its case on the net worth principle for determining liability, beginning with a base as of December 31, 1941, and computing accretions to assets in each of the tax years. After the Treasury began investigation he engaged certified public accountants who reported to him a shortage in taxable income for the five year period of little more than one-half of the shortage claimed by the government, and this liability he now concedes. The appellant is an uneducated man, without knowledge of accounting or bookkeeping and unfamiliar with tax problems. His defense was that prior to the investigation he had employed Mason, a bookkeeper and tax accountant, on a part-time basis, to make up his tax returns. He relied upon Mason for his advice as to his tax liability, and if there was any mistake it was Mason's, for he himself had no intent to violate the law or avoid paying his taxes.
Of the many errors assigned by the appellant to the court's instructions to the jury, some may be dismissed as mere "fly-specking," others as inadvertences in phrasing, incapable of creating prejudice in the light of the general observations of the court. There were, however, a number of instructions that bear a different aspect and must be given serious consideration, as to whether they confused or prejudicially misinformed the jury.
The most important of these relate to what is charged to be undue emphasis placed by the court upon the circumstance that part of the appellant's income was derived from the operation of a handbook said to have been conducted by others at the rear of the appellant's premises. The appellant vigorously denied operating the handbook. He testified that he was neither the owner of nor a partner in the handbook enterprise, that he had rented the space to those who were conducting it, with his rent computed upon a percentage of the profits. The character of this enterprise, therefore, necessarily came into the picture although there was no proof that the rental received from it by the appellant was withheld in his return of income. The court, however, took particular note of this activity by repeated references to it in its instructions to the jury, concluding with the following: It is true that it was immediately pointed out that operating the handbook is not the offense for which the defendant is being tried, though by this caution itself the operation of the handbook was placed upon the defendant.
But this is not all. Repeatedly the court referred to the handbook as though it had been conceded or beyond peradventure established that during the tax years it was operated by the appellant. "And during that time he was either operating individually or in partnership, a handbook." When the jury panel was asked by the appellant's counsel whether or not they were opposed to the...
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U.S. v. Barnes
...process of selecting a jury protracted." Swain v. Alabama, supra, 380 U.S. at 218-19, 85 S.Ct. at 835. See also Lurding v. United States, 179 F.2d 419, 421 (6th Cir. 1950) (defendant is "entitled to probe for the hidden prejudices of the jurors"). Especially in cases attended by extensive p......
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Silverthorne v. United States
...543 (1964). The defendant in a criminal case has the right to "probe for the hidden prejudices of the jurors." Lurding v. United States, 179 F.2d 419, 421 (6th Cir. 1950). The impartiality necessary on behalf of a fair "is not a technical conception. It is a state of mind. For the ascertain......
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...his thirty odd years of practicing law, and his three years on the bench before filing the 1980 return. Compare Lurding v. United States, 179 F.2d 419, 420 (6th Cir.1950) (where defendant was uneducated and unfamiliar with taxes, bookkeeping and accounting). We note that defendant reported ......