Newton v. United States

• Decision Date: 28 July 1947
• Docket Number: No. 5593.,5593.
• Citation: 162 F.2d 795
• Parties: NEWTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

162 F.2d 795 (1947)

NEWTON v. UNITED STATES.

No. 5593.

Circuit Court of Appeals, Fourth Circuit.

July 28, 1947.

J. Mills Newton, pro se.

Howard C. Gilmer, Jr., Acting U. S. Atty., of Pulaski, Va. (Henry T. Clement, Asst. U. S. Atty., of Chatham, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

J. Mills Newton was tried, convicted and sentenced in the United States District Court for the Western District of Virginia (sitting at Danville, the residence of Newton), under an indictment in twenty counts, charging violations of 26 U.S.C.A. Int.Rev. Code, § 3793(b) (1). The pertinent part of that section reads:

"Any person who wilfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a false or fraudulent return, affidavit, claim, or document, shall (whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document) be guilty of a felony, * * *."

The first count of the indictment, which is altogether typical, charges in part:

"That on or about the 24th day of May, 1945, in the City of Danville, in the Western District of Virginia, J. Mills Newton unlawfully and feloniously did wilfully aid and assist in, and procure, counsel and advise the preparation under, and in connection with a matter arising under, the Internal Revenue laws, of a false and fraudulent claim in the sum of $79.61, based upon amended income tax returns for the years 1942 and 1943, of Cooper T. Garner and Lizzie Garner * * *, and which claim was filed with the Collector of Internal Revenue for the District of Virginia."

Of the multitudinous points made by Newton, we think only four need be considered and discussed by us: (1) Improper venue; (2) insufficiency of the indictment; (3) denial of a continuance; (4) charge to the jury.

Venue.

This point was discussed ably and at great length by Judge Barksdale below. D.C., 68 F.Supp. 952. We deem it necessary to add little to what Judge Barksdale has there written. Newton's contention here is that since the returns were filed at Richmond, as was required by law, in the Eastern District of Virginia, if he has committed any federal crime, this crime was therefore committed in the Eastern District of Virginia, and he could not be tried therefor (as he was tried) in the Western District of Virginia.

Any expressions in the opinion of Judge Learned Hand in United States v. Kelley, 2 Cir., 105 F.2d 912, 916, relied upon by Newton, which seem to be inconsistent with our view here, are not controlling for the reasons stated in the opinion of Judge Barksdale, 68 F.Supp. at pages 955, 956. And we regard as particularly significant in this connection, the provisions of § 42 of the Judicial Code, 28 U.S.C.A. § 103, which provides that an offense begun in one District and completed in another, may be tried in either District.

In Dobie on Federal Procedure, § 127, page 511, it is stated:

"All federal crimes are statutory, and these crimes are often defined, hidden away amid pompous verbosity, in terms of a single verb. That essential verb usually contains the key to the solution of the question: In what district was the crime committed? Without the exact language of the statute, particularly this verb, paraphrases and loose citations in this field are more than inaccurate; they are positively misleading. When, as is so often the case, the statute enumerates several such verbs, only scrupulous, even meticulous, nicety in exact quotation can prevent these statutes, as well as the decisions under them, from proving a snare and a delusion to the unwary."

In the instant case, the key verbs in the statute (set out above) are "aids," "assists in," "procures," "counsels" or "advises" the preparation or presentation of a false or fraudulent return, affidavit, claim or document. Certainly all the activities of Newton connoted by these statutory key verbs took place in the Western District of Virginia. In addition to the cases cited in the opinion below, see Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482; Id., 202 U.S. 344, 26 S.Ct. 688, 50 L. Ed. 1057, 6 Ann.Cas. 362; Horner v. United States, 143 U.S. 207, 12 S.Ct. 407, 36 L.Ed. 126; In re Palliser, 136 U.S. 257, 10 S.Ct. 1034, 34 L.Ed. 514; United States v. Andrade, 5 Cir., 16 F.2d 776; Hart v. United States, 9 Cir., 11 F.2d 499.

Insufficiency of the Indictment.

Newton attacks the validity of the indictment on numerous grounds. One ground is the failure of the indictment to charge "that the accused knew that the claims and returns were false and fraudulent." The...