Rose v. United States, 2316.

• Decision Date: 16 June 1942
• Docket Number: No. 2316.,2316.
• Citation: 128 F.2d 622
• Parties: ROSE v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

128 F.2d 622 (1942)

ROSE v. UNITED STATES.

No. 2316.

Circuit Court of Appeals, Tenth Circuit.

May 19, 1942.

Rehearing Denied June 16, 1942.

Edward M. Box, of Oklahoma City, Okl. (L. E. McElroy, of Oklahoma City, Okl., on the brief), for appellant.

Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Joseph P. O'Connell, Sp. Asst. to Atty. Gen., on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

The indictment in this case contained two counts. The first charged that for the calendar year 1936 appellant received as gross income "Fees $78.60 Rents 4,298.85 Royalties 51.26 Other Income 7,249.36 Total $11,678.07," and that for the purpose of evading and defeating income taxes he falsely returned as gross income "Fees $78.60 Royalties 51.26 Rents 4,367.60 Total $4,497.46"; and the second charged that for the calendar year 1937 he received as gross income "Interest Received $11.25 Oil Royalties 8.16 Rents 4,408.36 Other Income 14,458.25 Total $18,886.02," and that for like purpose he falsely returned as gross income "Royalties $8.16 Rents 3,809.61 Capital Gains 975.08 Total $4,792.85." He was found guilty on both counts, and sentenced to a term of five years on each, with provision that the two sentences should run consecutively.

Error is assigned upon the overruling of a demurrer to the indictment on the ground that it failed to charge facts sufficient to constitute an offense under the laws of the United States and was so indefinite and uncertain that it failed to sufficiently acquaint appellant with the nature of the charge. The recognized yardstick for measuring the sufficiency of an indictment when challenged by demurrer is whether it contains the elements of the offense intended to be charged against the accused, and sufficiently apprises him of the nature of the specific charge to enable him to prepare his defense and to plead the judgment in bar to any later proceeding against him based on the same offense. United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619; Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Weber v. United States, 10 Cir., 80 F.2d 687; Crapo v. United States, 10 Cir., 100 F.2d 996; Graham v. United States, 10 Cir., 120 F.2d 543; Travis v. United States, 10 Cir., 123 F.2d 268. Each count in this indictment charged the essential elements of the offense in substantially the language of the statute. That was sufficient to sustain the indictment against the demurrer. Capone v. United States, 7 Cir., 56 F.2d 927, certiorari denied 286 U. S. 553, 52 S.Ct. 503, 76 L.Ed. 1288.

Appellant also filed a motion for a bill of particulars as to each count in the indictment showing a break-down or recapitulation of each item of income and indicating with particularity the source from which it was contended such income had been derived or received. The motion was denied, and that action of the court is challenged. A motion or other appropriate request for a bill of particulars enlarging upon an indictment in a criminal case is addressed to the sound judicial discretion of the trial court, and the action taken thereon will not be disturbed on appeal, except where such discretion was abused. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606; Dunlop v. United States, 165 U.S. 486, 17 S. Ct. 375, 41 L.Ed. 799; Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; Parnell v. United States, 10 Cir., 65 F.2d 324; Hood v. United States, 10 Cir., 76 F.2d 275; Hood v. United States, 10 Cir., 78 F.2d 150; Gates v. United States, 10 Cir., 122 F.2d 571; Price v. United States, 5 Cir., 68 F.2d 133, certiorari denied 292 U.S. 632, 54 S.Ct. 640, 78 L.Ed. 1486; Paschen v. United States, 7 Cir., 70 F.2d 491.

The bill should have been furnished in respect to the item "Other Income" in each count. But an appellate court will not reverse a judgment on account of the improvident denial of a motion for such a bill unless it appears from the whole case that the accused suffered substantial prejudice, either by surprise at the proof introduced against him or in some other manner. Lett v. United States, 8 Cir., 15 F.2d 686; Peck v. United States, 7 Cir., 65 F.2d 59, certiorari denied 290 U.S. 701, 54 S.Ct. 229, 78 L.Ed. 603; Williams v. United States, 9 Cir., 93 F.2d 685; Lucas v. United States, 70 App.D.C. 92, 104 F.2d 225; Landay v. United States, 6 Cir., 108 F.2d 698, certiorari denied 309 U.S. 681, 60 S.Ct. 721, 84 L.Ed. 1024.

In Singer v. United States, 3 Cir., 58 F.2d 74, 75, the judgment was reversed for failure to require the furnishing of a bill of particulars. There the indictment charged the receipt of income in excess of $400,000, and that two items making up the total were, "Income from partnership $163,570.26 * * * Other income $240,635.19." It developed on the trial that the charges contained a great number of irrelevant figures; there was much confusion in an attempt to unravel the facts; several interruptions of hours each were necessary during the trial; a government witness testified that from records which had been introduced in evidence, he could state the amount of the income of the accused, and that it was more than $400,000; yet through the information brought out in the course of cross examination, and the facts which the court required the government to give to the accused, almost $300,000 was eliminated from the total amount, as charged, and the entire item of "Other Income" of $240,635.69, except about $10,000, was eliminated in the course of the trial as taxable income. Looking at the entire picture in retrospect the court concluded that the indictment did not inform the defendant with sufficient particularity to enable him to prepare his defense without surprise and embarrassment; and that the greatly exaggerated allegations in respect to amounts, the confusion, and the interruptions in an effort to unravel the facts, all considered together, prejudiced him. But here an entirely different situation is presented. Appellant was a member of the Board of Education of Oklahoma City; the indictment was based primarily upon his failure to return for income tax purposes income received in the form of bribes for action by the Board of Education; the entire proof of the government was confined to less than twenty specific sums in cash delivered to him, all representing bribes; no evidence was offered respecting interest, fees, rents, royalties, or other revenue. There was no large multiple of involved transactions, no great mass of complicated figures, no confusion, and no interruptions of the trial for the purpose of exploring facts and figures. The misconduct of appellant and other members of the Board of Education had given rise to the institution and prosecution of ouster proceedings in the state court, and the attorney for the Board had been indicted and sentenced to the state penitentiary for his participation in one transaction involving bribery of members of the Board. Four other members of the Board were likewise indicted in the court below for failure to return for income tax purposes money received as bribes, final disposition was made of their cases, and it is stated in the brief of appellant that great publicity was given to the series of companion cases. And, according to testimony which bears the earmarks of credence, appellant sought to induce one person who had paid him bribe money to give perjured testimony in respect to the matter and as an inducement stated "that he would be taken care of." It is clear that appellant knew or had reason to believe that the item "Other Income" in each count of the indictment referred to money received as bribes; there was no suggestion during the trial that for want of the information requested in the motion for the bill he was unprepared to meet the testimony relating to such bribes; there was no request for a postponement in order to meet it; and there is no convincing suggestion now that if the bill had been furnished he could have produced additional or different testimony or could have prepared differently for the trial. It does not appear from the whole record that the denial of the application...