United States v. Comer

• Decision Date: 06 March 1961
• Docket Number: No. 14332.,14332.
• Citation: 288 F.2d 174
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond H. COMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

288 F.2d 174 (1961)

UNITED STATES of America, Plaintiff-Appellee, v. Raymond H. COMER, Defendant-Appellant.

No. 14332.

United States Court of Appeals Sixth Circuit.

March 6, 1961.

N. Mitchell Meade, Asst. U. S. Atty., Lexington, Ky. (Jean L. Auxier, U. S. Atty., John W. Morgan, Asst. U. S. Atty., Lexington Ky., on the brief), for plaintiff-appellee.

Harry B. Miller, Lexington, Ky. (Miller, Griffin, Marks & Stephens, Lexington, Ky., on the brief), for defendant-appellant.

Before McALLISTER, Chief Judge, and MILLER, Circuit Judge, and THORNTON, District Judge.

PER CURIAM.

The appellant, Raymond H. Comer, was found guilty by a jury in the District Court of conspiring during April, May, and June 1959 with John J. Lang to wilfully attempt to evade and defeat the special tax of $50.00 per year imposed by Section 4411, Title 26, U.S.Code, to be paid by each person engaged in the business of receiving wagers, and of wilfully attempting to evade and defeat the 10% excise tax imposed by Section 4401, Title 26 U.S.Code, on wagers placed with him while engaged in such business during the period of April 4, 1959, through April 30, 1959.

Appellant owned a building in Lexington, Kentucky, in which he operated a restaurant and bar. He used a room on the second floor as his living quarters. On or about January 15, 1959, he rented another upstairs room to Lang who admittedly operated a handbook therein until raided by Internal Revenue Agents on May 14, 1959. It is conceded that the special tax of $50.00 per year had not been paid, and necessarily no stamp indicating payment was displayed. Both appellant and Lang testified that appellant had no proprietary interest in the bookmaking operation and that appellant was merely the landlord of Lang.

It is appellant's contention that the evidence was insufficient to take the case to the jury as against the appellant. In particular, he contends that the evidence failed to prove under the first count knowledge on the part of appellant that the $50.00 gambling tax had not been paid, which was necessary in order to sustain the charge of conspiring to evade the tax, and also failed to prove under the second count that the 10% excise tax had not been paid for the period specified in the indictment, namely, April 4, 1959, through April 30, 1959, although Lang admitted in his testimony that it had not been paid for the period of January 15, 1959, through March 31, 1959.

The evidence showed that it was necessary for appellant to go through the betting room to reach his living quarters; that an Internal Revenue Agent secured admittance to the betting room on nine different occasions between April 4, 1959, through May 14, 1959, the day of the raid, and placed bets with Lang; that appellant was seen in the betting room on at least three of these occasions; that on one occasion he produced, at the request of Lang,...