Watts v. United States, 4736.

• Decision Date: 16 April 1954
• Docket Number: No. 4736.,4736.
• Citation: 212 F.2d 275
• Parties: WATTS v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

212 F.2d 275 (1954)

WATTS v. UNITED STATES.

No. 4736.

United States Court of Appeals Tenth Circuit.

April 16, 1954.

Hal D. Reed, Denver, Colo. (Frank A. Bruno and Anthony F. Zarlengo, Denver, Colo., on the brief), for appellant.

Robert D. Inman, Asst. U. S. Atty., Boulder, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Robert Maxwell Watts, was indicted, tried and convicted of wilfully attempting to defeat and evade federal income taxes in violation of 26 U.S.C.A. § 145(b). In this appeal he challenges the sufficiency of the evidence to sustain the charge, the instructions of the court, and the dismissal of the court on its own motion of Jack D. La Rock from service on the jury.

Appellant was engaged in the construction and building of houses in the cities of Pueblo and Craig, Colorado. He organized and owned a large block of stock in two companies, The Pueblo Housing Corporation and the Moffat County State Agency. He carried on his business of constructing, selling and renting houses through these two corporations and also in his individual capacity. While acting in his individual capacity, he performed services for the two corporations for which he received compensation. He reported his income tax for the year in question on the cash basis. The indictment charged that for the year 1946 he knowingly and wilfully falsified his income tax return by failing to correctly report his true net income for that year and thus knowingly attempted to defeat a large part of the income tax due and owing by him to the United States for the year 1946.

Appellant contends that the Government failed to make a case for the jury because it failed to adduce substantial evidence that an additional tax above that returned by his income tax return was in fact due and owing for the year in question. It was not necessary that the Government introduce evidence as to the exact amount of the additional tax due. To make a case for the jury, it was sufficient that the Government present substantial evidence from which the jury could find that a substantial amount of net income was not reported and that the failure to so report it was wilful and intentional. When once that was established, the amount of the additional income tax remained unimportant because it would follow as a matter of course that a substantial amount of additional tax remained due and unpaid. The exact amount of such tax was not an essential element of the offense with which appellant was charged.¹

Without descending to particulars, it is sufficient to say that the Government adduced substantial evidence which, if believed, showed an additional unreported income of $23,737.86. Most of the items making up this amount were in dispute. Some may not have been income to appellant. Without analyzing these items in detail, it is sufficient to say that they are of such a nature that many, if not all, constituted income to appellant, depending upon whether the jury believed the Government's version of the evidence or that offered by appellant. We, therefore, conclude that there was substantial evidence which required the court to submit that issue to the jury.

It is contended that reversible error was committed by failing to instruct the jury as requested by appellant that the indictment constituted no evidence of guilt. The trial court might well have given this instruction, as is done in many criminal cases, but the trial court made it clear to the jury that the defendant was innocent of every element of the charge until the Government proved to its satisfaction by substantial evidence beyond a reasonable doubt every single element of the offense with which he was charged. The court instructed the jury with respect to the elements of the offense with which appellant was charged. It told the jury the burden rested upon the Government to produce evidence which satisfied it beyond a reasonable doubt of the defendant's guilt; that if the jury found from a consideration of the evidence that all the elements of the offense had been established to its satisfaction beyond a reasonable doubt its verdict should be guilty; otherwise, its verdict should be not guilty. Reading the instructions in their entirety, there can be no doubt that the jury understood therefrom that the defendant was innocent until the Government established his guilt by evidence produced in the trial beyond a reasonable doubt. Since the court's instructions were clear and correct, they are adequate. Appellant was not entitled to have the court instruct the jury in any particular words or in the language of his requested instructions.²

Exception is taken to the court's refusal to give appellant's requested instruction No. 7 which stated that Section 145(b) so far as material provides that "`Any person required under this chapter to * * * pay over any tax imposed by this chapter, who wilfully fails to * * * pay over such tax and any person who wilfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof shall * * *' be guilty of crime." The court gave the substance of this instruction when it set out the elements of the offense and told the jury it must find beyond a reasonable doubt that appellant did these things wilfully and knowingly in an attempt to defeat and evade collection of his income tax.

Appellant further contends that the court did not adequately instruct the jury on the question of reasonable doubt and failed to instruct upon the fact of appellant's bona fide misconception of the law. This exception is not well taken. There can be no criticism of the court's instruction with respect to reasonable doubt. The instruction was almost identical with a like instruction approved by this court in the late case of Holland v. United States, supra.

During the year in question, appellant received in satisfaction of a debt due him from the Moffat County State Agency 84 shares of corporate stock for which he credited the...