United States v. Elvain, 266

• Decision Date: 06 December 1926
• Docket Number: No. 266,266
• Citation: 47 S.Ct. 219,71 L.Ed. 451,272 U.S. 633
• Parties: UNITED STATES v. McELVAIN et al
• Court: U.S. Supreme Court

272 U.S. 633

47 S.Ct. 219

71 L.Ed. 451

UNITED STATES

v McELVAIN et al.

No. 266.

Submitted Oct. 21, 1926.

Decided Dec. 6, 1926.

The Attorney General, Mr. Wm. D. Mitchell, Sol. Gen., of Washington, D. C., Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., and Sewall Key, of Washington, D. C., for the United States.

Mr. John J. Healy, of Chicago, Ill., for defendants in error.

[Argument of Counsel from pages 634-635 intentionally omitted] Mr. Justice BUTLER delivered the opinion of the Court.

October 3, 1924, defendants in error were indicted under section 37 of the Criminal Code (35 Stat. 1088, 1096 (Comp. St. 10201)) for conspiracy to defraud the United States in respect of its internal revenue. It is charged that they conspired to make a false income and profits tax return for 1920 for the Freeman Coal Mining Company, and that they caused a false return to be prepared, sworn to and filed, and committed various other overt acts. But an act is alleged to have been done later than March 14, 1921, more than three years prior to the indictment. Each of the defendants interposed a plea that the prosecution was barred because not commenced within three years after the offense. The district court, being of opinion that the applicable period of limitation had expired, entered judgment sustaining the pleas and discharging the defendants. The case is here under Criminal Appeals Act, c. 2564, 34 Stat. 1246 (Comp. St. § 1704). United States v. Barber, 219 U. S. 72, 31 S. Ct. 209, 55 L. Ed. 99.

The question for decision is whether the applicable period is three years fixed by section 1044, Revised Statutes (Comp. St. § 1708), or six years specified in a proviso added by the Act of November 17, 1921, c. 124, 42 Stat. 220 (Comp. St. § 1708).

It is necessary to consider a number of statutory provisions. Section 1044 provides:

'No person shall be prosecuted, * * * for any offense, not capital, except as provided in section 1046, unless the indictment is found, or the information is instituted, within three years next after such offense shall have been committed. * * *'

The defendants insist that the foregoing provision applies. The government contends that the case is covered by the proviso:

'Provided, however, that in offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, and now indictable under any existing statutes, the period of limitation shall be six years.'

And the proviso was made applicable to offenses theretofore committed and not already barred.

Section 1046 (Comp. St. § 1710) provides:

'No person shall be prosecuted, * * * for any crime arising under the revenue laws, or the slave trade laws of the United States, unless the indictment is found or the information is instituted within five years next after the committing of such crime.'

Act July 5, 1884, c. 225, 23 Stat. 122 (Comp. St. § 1711), provides:

'That no person shall be prosecuted, * * * for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information instituted within three years next after the commission of the offense, in all cases where the penalty prescribed may be imprisonment in the penitentiary and within two years in all other cases. * * *'

This act was amended by section 1321 of the Revenue Act of 1921, approved November 23, 1921 (42 Stat. 315, c. 136 (Comp. St. § 1711)), which eliminated the two-year period so as to make the three-year period apply to all offenses. And it was further amended by section 1010(a) of the Revenue Act of 1924, approved June 2, 1924 (43 Stat. 341, c. 234 (Comp. St. § 1711)), which added the same proviso that was added to section 1044. This latest amendment, passed after the offense here charged applied the six-year period to offenses thereafter committed against the internal revenue laws and covered by the proviso.

The offense charged is a conspiracy and not one arising under the internal revenue laws; and it is not within the Act of July 5, 1884, as amended. The period applicable is either three years under section 1044 or six years under the proviso. The government argues that defrauding the United States is an ingredient of the crime charged, and that the six-year period applies. It relies on United States v. Noveck, 271 U. S. 201, 46 S. Ct. 476, 70 L. Ed. 904. But that case is not like this one. The question there involved was whether an allegation in an indictment for perjury (section 125, Criminal Code (Comp. St. § 10295)), that the crime was committed for the 'purpose of defrauding the United States,' took the case out of the...