United States v. Signore, 7295.

Decision Date30 October 1940
Docket NumberNo. 7295.,7295.
PartiesUNITED STATES v. SIGNORE.
CourtU.S. Court of Appeals — Seventh Circuit

George F. Callaghan, Jos. V. Murphy, and John C. Melaniphy, all of Chicago, Ill., for appellant.

Wm. J. Campbell, U. S. Atty., Martin S. Gerber, Martin Ward, and Joseph H. Collier, Atty., U. S. Treasury Department, all of Chicago, Ill., for appellee.

Before MAJOR and KERNER, Circuit Judges, and BRIGGLE, District Judge.

MAJOR, Circuit Judge.

This is an appeal from a judgment of conviction on a five-count indictment charging violations of Title 26, United States Code Annotated, Sec. 2811, Internal Revenue Code. The trial was had to the court without a jury and at the conclusion of plaintiff's case the court sustained the defendant's motion for a finding of not guilty on Counts 1 and 3, and denied such motion as to the other Counts. The defendant offered no evidence and was found guilty on Counts 2, 4 and 5. A sentence of one year and a fine of $500 was imposed on each Count, the sentences to run concurrently.

The errors presented and argued on this appeal are (1) the court erred in overruling defendant's demurrer to the indictment, (2) the court erred in the admission of evidence, and (3) the evidence discloses a variance between the charge and the proof.

The statute upon which the prosecution is predicated, so far as here material, provides: "Every person disposing of any substance of the character used in the manufacture of distilled spirits shall, when required by the Commissioner, render a correct return in such form and manner as the Commissioner, with the approval of the Secretary (of the Treasury), may by rules and regulations prescribe, showing the names and addresses of the persons to whom such disposition was made, with such details, as to the quantity so disposed of or other information which the Commissioner may require as to each such disposition, as will enable the Commissioner to determine whether all taxes due with respect to any distilled spirits manufactured from such substances have been paid. * * *"

Each of the Counts charges, in substance, that the defendant was engaged in the business of selling, consigning and disposing of certain food stuffs and substances of the character used in the manufacture of distilled spirits, to-wit: sugar; and while engaged in said business and after receiving the demand letter provided in the statute and regulations requiring and demanding that the defendant, among other things, furnish in writing, returns showing each and every consignment, sale or disposition by the said defendant of all amounts of substances of the character used in the manufacture of distilled spirits "did dispose of a large quantity of substances of the character used in the manufacture of distilled spirits * * * namely, to-wit: 100 pounds of sugar," (Count 2) and that the defendant "did fail to make or deliver any report to the said Commissioner of the disposition of said sugar." Counts 4 and 5 are substantially the same except as to dates, and in Count 5 the defendant is charged with a failure "to make and render a correct return."

The principal argument made against the validity of the charge is that it is vague, indefinite and uncertain and, therefore, void. A large number of cases are cited which support the general proposition thus stated but which, we think, are not applicable to the situation before us. It seems apparent that the essential elements of the offense condemned by the statute are (1) that the person charged has been required to make a return, (2) that substances of the character named in the statute have been disposed of, and (3) a failure to render the required return. The Counts of the indictment aver these three necessary and essential elements. In United States v. Mustari, 7 Cir., 109 F.2d 438, this court passed upon an indictment almost identical in form and approved its validity. It is argued by the defendant that the rules and regulations prescribed by the Commissioner should have been set forth in the indictment, and that otherwise the defendant was not advised as to the character of return required. We do not think this was necessary. If the defendant was in doubt as to the charge he was required to meet, he could have properly applied for a bill of particulars, "* * * otherwise it may properly be assumed as against him that he is fully informed of the precise case which he must meet upon the trial. * * *" Rinker v. United States, 8 Cir., 151 F. 755, 759. In addition, the indictment alleges in substance that the defendant was required to furnish to the Commissioner the information "upon certain blank forms so furnished by the Commissioner to the defendant." It is to be noted that the Counts of the indictment do not charge the making of a false report, but a failure "to make or deliver any report." It is also pointed out that the indictment uses the words "a demand letter" when no such words...

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