*1 erybody photo- standing in line.” The was UNITED STATES. just HAIGLER v.
graphs was inside the. urn show Legler Mrs. left of door on the the line. No. 3735. opposite one There was no it. Appeals Court of States urn, they con- between Tenth Circuit. stituted line” The attendant “the there. 9, 1949. Feb. said, you а over form “Some of come lobby you
line left side on the Legler, get quicker.” as
can Mrs.
jury conclude, go turned as well could high place in the possible get as
soon urn looking
new without at the line and they fell I
at her think left side over it. justly regard precipitancy her
could .piece large fur-
failure at so look was in theater 'the
niture which she knew
lobby negligence. Such con- was the main were negligence, jury
tributory as recovery but re- did not defeat
quired proportionate reduction of dam- ques- jury was a
ages. Negligence non vel McCarthy, S.Ct. Wilkerson v.
tion.
413. . damages is
The evidence as that her expense $150, broken
whole medical $18; lost
eye glasses total She $168.00. work, and days
a few from her hired an
assistant, but she herself back soon job
on from 7 A.M. to 2:30 -Her 'P.M. grown greatly
tea business had room employing
she considered had before
helper, per did at week after her she $40
injury. complete Her cure was fewain
weeks, except a weakness her knee
going upstairs. helper, She continued her
however, up trial, to the time of the wages principal
her were item dam-
ages just- claimed. I think could wages
ly her were a nec- conclude that not
essary expense than a for more few weeks. would
It to me be un- seems $750 damages as full
reasonable a third of
it, $254, visited wоuld defendants That is’ unfair. not “nominal dam- appellate
ages'.” judges juris- have We
diction to set verdict State aside. Doughty,
Farm Auto. Ins. Co. v. many cases cited including Supreme
therein three from the
Court. denied;
Rehearing Sibley, Judge, Circuit dissenting. dissenting. BRATTON, Judge, *2 987 Cir., 968, 10 120 F.2d 980. Under See also Evidence, Ed., hill’s Criminal Sec. 4th proof support The of in the indictment appellant еffect is a sheepman rancher and living near Monte Vista, Colorado, operates large he a where sheep ranch, about and 2000 acres of irri- gated part land. ranching As of his ac- tivities, grazes large sheep he also of herds Eastern Colorado and in Western Kansas. During approxi- he received Ralph Colo., appel- Carr, Denver, for of mately $19,000, which he did in not include lant. Ap- income his tax for year. return proximately $15,000 of this amount was Henry Lutz, Denver, (Max E. of M. Cоlo. proceeds ewes, of the sale of some old some brief), Bulkeley, Wray, Colo., of for lambs, with pasture then on Western in appellee. money Kansas. deposited in the This BRATTON, HUXMAN, Before and Beaty Manzanola, Colorado, Bank at where Judges. MURRAH, Circuit previously had never done any banking $2,114.82 represented by
business.
13, 1941,
check
dated October
for
sold
MURRAH,
Judge.
City,
in Kansas
deposited
which was not
appellant,
appeals
The
Burt
Haigler,
E.
Alamosa,
the First State Bank of
where he
wilfully,
аnd
a conviction
sentence for
from
usually
business,
19,
February
until
knowingly
unlawfully attempting
to de-
1942; a
pelts;
of
check in
sum
for
$171
liability
and evade his income
for
feat
tax
sheep;
for
for
another
another
'and
$450
year
causing
by
calendar
or
filing
$78.33,
for
сheck
which he cashed and did
be filed a
false
fraudulent return
deposit.
proof
The
showed that
145(b)
violation of Section
of the Internal
together
income,
additional
the re-
with
Code,
145(b).
Revenue
26 U.S.C.A.
The
§
$30,001.99,
turned income of
would increase
decisive,
principal,
question
think
we
liability
1941, approxi-
his tax
for
erroneously
here is whether
trial court
$10,000.
mately
proffered testimony tending
excluded
purp’ose
For the
of showing
intent
negative any wilful intent to
defeat
motive,
also introduced evi-
liability.
tax
evade his
appellant
dence to the effect that
failed to
being
Wilfulness
an essential ele
$6,780
include
his income
1939 in
of
his
charged,
of the offense
evidence show
ment
year,
sum,
and that this
it,
lack
ing
tending
or
de
to show
check,
form of a
had likewise been de-
fense,
purpose.
is admissible for that
posited
ain
bank where he was not accus-
Cir.,
Dearing
States,
167
v. United
10
See
doing
tomed to
business.
310;
F.2d
One 1941 Buick Sedan v. United
States,
445;
Cir.,
Hargrove
10
158 F.2d
v.
Cross-examination
wit-
States,
820, 90
developed
A.L.R.
nesses
the fact that
the Fall
appellant
purchased
Annotation
A.L.R.
We
approximately
have of
where,
here,
pur $13,000
young sheep,
motive or bad
worth of
said
giving
check
his
Beaty
is an
the offense
therefor on
account
pose
essential element
Bank;
April
only directly
may
May
some time
the accused
or
testify
pur
no such motive or
had
after
return had been
may,
rights, prepared
filed,
Carter,
rational
pose, but he
within
he told Mr.
his
accountant,
Vista,
on the
“buttrеss such statement
of Monte
streets
circumstances,
including conversa
had about
relevant
in a bank in the
persons
Valley
or statements
had with third
Arkansas River
he had not
tions
them, tending
support
reported;
his
him
by
made
state
Carter
then told
it
* *
States,
Miller v. United
would make a material
tax
ment
difference
his
liability,
derstanding
liability
amended
he should-file
his
return;
press
involved,
busi-
transactions
court made it un-
that because of the
deniably plain
appellant’s
he did not have
that'
understand-
Springs,
ness
Colorado
defense;
ing
applicable
it,
fur-
was no
but
would
law
time to make
if
*3
return,
“everybody
that
the
data,
is on notice of what
amend the
nish the
he would
is,
ignorance
ex-
no
agreed
law
of the
is
appellant
to do so.
law
that the
cuse,
you
know.”
spoke
he
to
Carter further testified that
may be,
it,
Unconvincing
test
as it
deputy
concerning
collector
and asked
this
imony
up
bearing
was plainly admissible as
prepare
return
the
him to
an
when
amended
on
essential
com
availablе,
the
intent
in-
element of
to
but that no
information was
mit the offense
we think it was
by Haig-
him
was furnished to
formation
exclude
error to
it.
ler
the Fall of
and no amended
until
he
filed. He
testified that
return was
also
testify
appellant
permitted
The
to
was
$2,114.82
did
of thе
until he
not know
check
reported
$5,000
in the
the
balance
came,
prepare
to
the return
the taxable
auditor,
Beaty
him
Bank to his
who told
it
and did not include
in the
“sup-
necessary
be
that it would
to make a
it
not
that
return
income for
beсause was
plemental
return,”
in the
and that
later
cross-examination,
year.
counsel for the
On
summer,
it,
again
when he
mentioned
Carter
appellant sought to
internal
elicit from the
reported
Mr.
told
that he -had
it to
him
explanation
agеnts,
to-
Haigler’s
revenue
Admire,
deputy collector,
who would
having returned the income
for not
out
the
Fie further
“make
assessment.”
question.
objected
to
The
$2,114.82
that the
receiv-
testified
check for
Haigler
inquiry
grounds
on
that
the
this
deposited
ed in October of
and not
prove
story
seeking
was
“side of the
to
his
misplaced in
February
until
been
had
by government witnesses.”
quit using,
an
had
old billfold which he
deposit
did
knowingly
but that he
not
fail to
From cross-examination of
year
it
the
it
during
in which
received
witnesses,
was
questions
and from
asked of de-
purpose
payment
witnesses,
evading
for the
plain
theory
fense
it
that the
permitted
tax
He was also
appellant’s
income
thereon.
defense
un-
of the
was that he
received, cashed,
testify
to
thаt
derstood,
although he
generally
it was
under-
report,
not
the other
in-
sheepmen,
did
checks
among
that if an
herd
stood
old
volved;
purpose
he had no
or intent to
evade
replaced
was
in the same
sold
payment of
per-
taxes. He was
the
income
year
herd,
the taxable income
with
new
testify
to
his interviews
mitted
with
price of
was the difference between the sale
agents during
investiga-
the
their
revenue
herd,
price
purchase
the
and the
of the
old
tion,
deposited
he told them that he
the
had
new;
he
the
of his
called to
attention
proceeds
the
of the old
in the
sale
ewes
approximately
auditor the balance of
separate
Beaty
keep
Bank to
it
from his
days
thirty
after
thе account about
his
accounts,
other
that he could
it to
so
use
filed,
been
income tax return had
replace
young
the old
with
ewes
ewes
believe,
led to
he understood or
it
was
fall,
considered
transaction
he
reflected
return.
would be
amended
an
“trade,”
merely a
which
there was
appellant
the
Counsel for
insisted that this
liability.
tax
testimony
purpose
was
for the
admissible
lack of intent to
showing his
defeat or evade
Thus,
permitted,
appellant
in
was
liability.
his
income
directly,
theory
to
the
of his de
adduce
court, however,
objections
by stating what he
told the inves
sustained
fense
had
The
explanation
testimony
tigators
But
any
concerning his
acts.
understand-
his
to
applicable
change
bit of
the
law
tо his income tax this
ing of the
grounds
upon
was
its
theory
tried.
In
liability,
his intent
acts,
jury,
court
by instructions
trial
judged by
and not
would be
his
gist of
consequenc-
repeatedly
their
referred to intent as the
he understood to be
what
objections
necessity
sustaining
repeаted
charged, and of
ef-
the offense
es. In
appellant’s
beyond
reasonable doubt that
finding
counsel to
un- of
forts of
show
intentionally
tending
or at-
appellant
evaded
show that
evaded
liability.
tempted
income tax
taxes for
tо evade his
evidence
1939. That
intent
establishing
that wilful
was
The
instructed
offered for
purpose
proof
intent or
element
essential
wilfulness in
effort to evade
order to
charged, and that
the taxes for
the crime
the year 1941. The defendant
nеcessary had
guilty,
it was
justify a verdict of
to offer admissible evidence
prove,
only
tending
a false
had
return
to show that he acted without
filed,
wrongful
been
but that the
caused
intent -or
wilfulness
connection
knowledge
that it with
return
made
Some
fraudulent,
intеn- of
and with
wilful
testimony relating
excluded
to his
evading
obligation
tion of
intent was
his
under
admissible. But a critical exam-'
*4
statute. But the
also told that
mination of the record as a whole indicates
every
presumed
clearly
citizen was
to
the
stages
know
that at other
of the trial
law,
ignorance of
no- virtually
law was
upon
that
the
all
bearing
of the evidence
question
in
justification
excuse or
violation
the
its
was admitted. All
evi-
of the
any particular.
dence relating
sheep,
-aged
tо the
of the
sale
deposit
all of
relating
to
of
the
the-
irreconcilably
We think it
inconsistent
Manzanola,
funds in the bank at
all of
say
knowledge
guilty
to
in one breath
that relating
to the
about
of
use of
consequences
of the
the act
is thе
done
of
such
purchase
sheep,
funds for the
young
of
offense,
essence of the
next
all
oversight
of that relating to the
of the
say
ignorance
breath
of the conse-
defendant of the balance
still in
-of $5000
quences of those аcts is no excuse. See
the
making
bank
the
at
time
the
the
of
of
Hargrove
States, supra;
v. United
Annota-
return, all
relating
of that
to the disclosure
tion, 90
A.L.R.
We are convinced
expert
of the
prepared
facts to the
who
the
trial,
did not
thе
have -a fair
return,
all
relating
to
of
the under-
and the judgment
reversed.
supplemental
standing that a
return would
made,
be
was -admitted. The defendant
BRATTON,
Judge
(dissenting).
himself,
testified to those facts
and was
145(b)
Section
the Internal
of
Revenue permitted
prоve
to
on cross examination of
Code, 26
145(b), provides in
U.S.C.A. §
representatives
two
of
of the Collector
presently
part
any person
material
who Internal Revenue
stated all
such
of
wilfully attempts
any
in
manner to evade facts tо them in the course of interviews
any
imposed
or defeat
by
chapter
the
relating
qtres-
to his return
the
payment
or
punished
the
thereof shall be
addition,
tion.
In
the defendant testified
specified.
as therein
“wilfully”
The word
representatives
that he told the
-of the
as
wrongful
therein used means done with
collector
thought
he was
purpose
distinguished
intent or bad
transferring
aged
bunch
to
from a
of
ewes
inadvertence,
from mere
oversight, or ac-
ones;
young
a bunch
if
of
he had
Murdock,
cidеnt.
States v.
290
traded
right;
it would have
all
been
389,
223,
U.S.
54 S.Ct.
78 L.Ed.
Har-
way
that the
the matter was handled
820,
grove
States, Cir.,
v. United
5
67 F.2d
just
the same as a trade. And he
A.L.R.
Therefore a wilful intent
language
sweeping
further testified
re-
payment
to evade or defeat
of income tax specting all of the transactions involved
was one of
essential
elements
keep
that it never entered his
to
mind
offense laid
indictment which the
purpose
out of
required
prove
order
evading
payment
income tax.
to warrаnt a conviction
defendant.
may
im-providently
While
court
have
Skidmore, United States v.
objections
questions
sustained
which
certiorari denied 315 U.S.
62 S.
properly
having
up-
bearing
were
asked as
Ct.
In evidence the trial the was admitted and adition jury, to the during the defendant the went to the and therefore the action objections sustaining evidence of the court offered constitute points defendant prejudicial error. course to time in the From time counsel,-
(cid:127)discussion between court com- or statements
the court made some of the respect to the intent
ments charge laid defense to the
(cid:127)defendant aas were not I think the indictment which But law.
(cid:127)entirely accurate statements of jury, given
-inthe formal instructions abundantly clear that court made it was an taxes wilful intent to evade income
n essential crime element of the been
-and that element had unless such acquit- established defendant should emphasis laid in the In
ted. view upon being wilful intent formal instructions *5 offense which essential element beyond reasonable
must be established
doubt, I think there is tenable basis
-the contention that statements. during the course from time «court time to of evidence constituted
of the introduction
prejudicial error. judgment.
I would affirm OF v. 25.406 ACRES
UNITED STATES COUNTY, LAND, etc., IN ARLINGTON et
VIRGINIA al.
No. Appeals States Court Circuit. Fourth
Feb.