Price v. United States, 7051.

• Decision Date: 05 January 1934
• Docket Number: No. 7051.,7051.
• Citation: 68 F.2d 133
• Parties: PRICE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

68 F.2d 133 (1934)

PRICE v. UNITED STATES.

No. 7051.

Circuit Court of Appeals, Fifth Circuit.

January 5, 1934.

W. P. McLean and Jack Binion, both of Fort Worth, Tex., for appellant.

Clyde O. Eastus, U. S. Atty., and Frank B. Potter, Asst. U. S. Atty., both of Fort Worth, Tex.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Price was indicted in two counts under Revenue Act of 1928, § 146 (26 USCA § 2146), for willfully failing to make an income tax return for the calendar year 1930, and for willfully attempting to evade payment of his income taxes for that year; each count alleging that during 1930 and at the time he should have returned and paid his taxes he had his legal residence and principal place of business in the city of Dallas and within the jurisdiction of the court. Before pleading not guilty, Price pleaded specially to the jurisdiction of the court that during 1930 and from January 1, 1931, to June 15, 1931, he was not a resident of Dallas nor did he have his principal place of business there but resided in Beeville, Bee county, Tex., in another collection district and in another federal court district, and prayed a separate trial of the issue. He also sought a bill of particulars. The bill was refused and separate trial of the issue of territorial jurisdiction was denied, the court ordering it to be tried by the jury along with the merits. The jury found Price guilty, and he appeals, assigning for error the rulings just stated, the refusal to instruct a verdict of not guilty, the refusal to allow his wife to testify, and certain instructions in the charge.

The indictment was very full and specific and needed no enlargement by bill of particulars. The refusal of it was well within the court's discretion. No surprise developed in the trial. Dunlop v. United States, 165 U. S. at page 491, 17 S. Ct. 375, 41 L. Ed. 799; Wong Tai v. United States, 273 U. S. 77, 82, 47 S. Ct. 300, 71 L. Ed. 545.

Nor was there error in the disposition made of the special plea. The usual way of contesting the territorial jurisdiction of the court to try a crime under the Sixth Amendment of the Constitution is on a plea of not guilty, which puts in issue the whole case and enables the defendant to make any special defense which goes to an original absence of guilt as charged. Bishop's New Criminal Procedure, §§ 743, 799. The burden is then upon the prosecution to prove the jurisdictional allegation as to the place of the offense with the same certainty as any other on pain of failure to convict. Vernon v. United States (C. C. A.) 146 F. 121; Moran v. United States (C. C. A.) 264 F. 768. Bishop says: "It seems that the defendant cannot plead to an indictment before justices that the offense was committed at some place beyond their jurisdiction, for this would amount to no more than the general issue." New Criminal Proc. § 736. There may, however, be great convenience in the separate trial of such an issue in cases of real doubt, just as a separate trial of an issue of present insanity is had, for if the court really has no power to try the case it ought not to, and if that question is tried under the general issue and results in a verdict of not guilty, there appears to be a former jeopardy and a former acquittal which would bar a trial before the court that really had jurisdiction. Also by separately trying such an issue a very long and expensive trial of the main fact may sometimes be saved. In 12 Cyc. p. 354, the separate plea is treated as optional. A separate trial of a defensive issue was disapproved in United States v. Murdock, 284 U. S. 142, 52 S. Ct. 63, 76 L. Ed. 210. In Wright v. United States, 158 U. S. 232, 15 S. Ct. 819, 39 L. Ed. 963, the court refused to try separately a plea to the jurisdiction and ordered the issue submitted to the jury in the main trial and his action was affirmed. In the present case if a separate trial was discretionary with the court the discretion was well exercised, for the whole contest proved to be over the question of residence. There was no other substantial defense. Price was not legally prejudiced by having one trial instead of two.

The evidence showed that Price had a large income in 1930 on which he owed a substantial tax, and that he had not returned the income nor paid the tax anywhere. On the point of his residence and place of business it was shown for the prosecution that he owned a home at Dallas, where he had resided with his wife and children continuously until the spring of 1930, when he took up an oil business at Beeville, Bee county, and afterwards spent part of his time there but visited Dallas and kept an office rented there and frequently throughout the year said Dallas was his home. He made an application for a corporate charter, describing himself as residing there, and made his income tax returns for 1929 and 1931 there. On April 16, 1931, he filed at Dallas a tentative tax return for 1930, sworn to by himself, in which he gave his address as 313 Thomas Building, Dallas, Dallas county, Tex. The return was otherwise blank except for the words, "Estimated no tax due." An extension of time was obtained to make a final return, but none was made. For the defense it was testified that Price left Dallas for Bee county in January, 1930, bought a residence there in the summer, and brought his wife thither, offering his Dallas home for sale but not selling it; his mother and father in law continuing to occupy it and his family visiting it at times. He sold the Bee county home early in 1931 and in the spring went to California temporarily. While at Beeville he had a business office there, and frequently declared that he had made that his permanent home. From this outline it is evident that the jury might have found either way on the question whether he had changed his permanent residence and his principal place of business from Dallas to Beeville. There was no error in leaving to them the question whether his returns and taxes were due at Dallas or elsewhere.

Touching the refusal of the court to permit the wife of Price to testify, all that the bill of exceptions contains is this: Defendant's counsel: "We will take Mrs. Price, the wife of the defendant." District Attorney: "The Government makes the usual objection to the incompetency of the wife of the defendant to testify." The Court: "If it is the defendant's wife and the Government objects, I sustain the objection." Defendant's counsel: "He is on trial, and she is not a competent witness, but we reserve the bill." We give effect to this half-hearted exception and will consider the point. The question of competency was ruled as the court at that time was bound to rule it under Hendrix v. United States, 219 U. S. 79, 31 S. Ct. 193, 55 L. Ed. 102, and Jin Fuey Moy v. United States, 254 U. S. 190, 41 S. Ct. 98, 65 L. Ed. 214. The Supreme Court has since overruled those cases and declared that the wife is competent to testify for her husband in criminal trials in the courts of the United States. Funk v. United States, 54 S. Ct. 212, 78 L. Ed. ___, decided December 11, 1933. We hold accordingly. But the question remains whether reversible error is shown. No question was asked the witness to indicate what testimony was expected, and no offer was made to prove any particular thing by her. The judge did not know, and we do not know, what she would have said if questioned. Counsel offering her should have interviewed her, and if not intending to acquiesce in the...