Sam E. HANER, Appellant, v. UNITED STATES of America, Appellee.
No. 20036.
United States Court of Appeals Fifth Circuit.
April 4, 1963.
315 F.2d 792
In connection with the amendments, Nortown invites our attention to the Advisory Committee‘s note referring to cases which hold that 4(d) (7) (as it read prior to amendment) was not limited by 4(f), and asserting that:
“The salutary results of these cases are intended to be preserved.”
Northern further contends that even if this action had been commenced in a state court in Illinois the summons served on Northern would have been ineffective, on the ground that the jurisdictional facts are insufficient to satisfy the prerequisites of the Illinois Civil Practice Act,
tion, persons who are brought in as parties pursuant to
Although we are of the opinion that the judgment of the District Court should be affirmed on the merits of the case, we decline to consider the issue of jurisdiction which does not appear to have been fairly presented to the District Judge, who had no opportunity to rule thereon.
This cause is remanded to the District Court for further proceedings on the sole issue of whether Northern was subject to the jurisdiction of the District Court.
Affirmed in part, remanded for further proceedings on the issue of jurisdiction.
On March 18, 1963, the Supreme Court ordered that the effective date of the amendments adopted by the Supreme Court on January 21, 1963, and transmitted to the Congress on that date, take effect on July 1, 1963, to govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the Court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure will apply.
Andrew L. Jefferson, Jr., Asst. U. S. Atty., San Antonio, Tex., Ernest Morgan, U. S. Atty., K. Key Hoffman, Jr., Asst. U. S. Atty., for appellee.
Before HUTCHESON, BROWN and WISDOM, Circuit Judges.
HUTCHESON, Circuit Judge.
Appellant appeals from his conviction under a three count indictment alleging willful failure to file his income tax returns for the years 1955, 1956, and 1957, in violation of
No real issue was presented below as to appellant‘s failure to file a return for each of those years. The principal issue involved the statutory requirement that the failure to file be willful, and it appears that the principal defense made was that the appellant was unaware of his legal obligation to file a return for each of those years. For example, he in-
Only one of the contentions advanced by appellant on this appeal warrants discussion. The trial court charged the jury: “You are further instructed that the word ‘wilful’ as used in this statute means with a bad purpose, or without ground for believing that one‘s act is lawful, or with a careless disregard whether one has the right to so act.” (emphasis added) Appellant contends, and we think correctly, that that instruction permitted the jury to convict him for mere carelessness or inadvertence, contrary to the statutory requirement that the failure to file must be willful.
Seeking to uphold the charge, the government argues that the word “willful” means something less when used in a misdemeanor statute, as is the one involved in this case, than when used in a felony statute. While the Congress could, of course, have written the statute so as not to require willfulness as an element of the crime alleged in this case, Congress having made willfulness an essential element of the offense, the courts cannot write it out. “Willful” generally means intentional, knowing, or purposeful, as opposed to careless, thoughtless, heedless, or inadvertent, and it means nothing less as used in
It follows that we are unable to agree with the decision of the Ninth Circuit in Abdul v. United States, (1958) 254 F.2d 292, in which a charge similar to the one given here was approved.2 With deference, we must say that, in our opinion, that court drew an incorrect conclusion3 from dicta in Spies v. United States, (1934) 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, and United States v. Murdock (1933) 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381.
We hold, not only that the charge was erroneous, but that the error was such as to require reversal. We are aware of the fact that no objection was made to it below. However, an affirmative duty rests upon the trial judge to give a correct charge and, similarly, upon us to correct a clearly and substantially incorrect one. The charge, being a misstatement of the law, constituted plain error, and, as such, the error is cognizable under
We have considered the other arguments advanced by the appellant, and, in our opinion, no further error appears. The judgment is accordingly
Reversed and remanded.
I respectfully dissent.
The majority opinion concentrates on one paragraph in the charge and focuses on two words, “careless disregard“. The complete charge on wilfulness was as follows:
“You will note that the omission or failure to act charged in the three counts of the information is alleged to have been wilfully done.
“A failure to act is ‘wilfully’ done, if done voluntarily and purposely, and with the specific intent to fail to do what the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.
“You are further instructed that the word ‘wilful’ as used in this statute means with a bad purpose, or without ground for believing that one‘s act is lawful, or with a careless disregard whether one has the right to so act.
“You must look to the facts and circumstances in evidence surrounding the defendant‘s acts or omissions to determine his knowledge, if any, intent, if any, and wilfulness, if any. In determining whether the failure of the defendant to file income tax returns, as charged in the information, was wilful must be determined by you from all the facts and circumstances developed on the trial of this case.” (Emphasis supplied.)
With deference, I suggest that the trial court did not offer the alternative of finding the defendant guilty of negligence by referring to “carelessness or inadvertence” as elements of wilfulness. On the contrary, the trial judge charged that there must be “the specific intent to fail to do what the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.” The unmodified word “disregard“, as used in the paragraph from which that quotation is taken, means the conscious, deliberate flouting of the law. That is all it can mean. It carries the same meaning in the next paragraph. When modified by “careless“, the two words mean the reckless, irresponsible flouting of the law.
That is just what the evidence proved. The defendant is no young innocent. He is an industrious business man whose gross income in the years in question amounted to $77,000 in 1955, $100,000 in 1956, and $62,500 in 1957. He lived on the Government: the greater part of his income came from contracts with the United States. But, except for 1946, he filed no income tax returns from 1935 through 1960. And, in prior judicial proceedings, he admitted that he had knowledge of his legal obligation to file federal income tax returns and falsely stated that he had done so in 1953, 1954, and 1956.
Here is a man who rashly, recklessly, irresponsibly, deliberately flouted the law. He didn‘t give a hoot; he couldn‘t care less; he didn‘t care whether school kept or not. Brash, overconfident, a man who got by with murder for over twenty years, he could afford to thumb his nose at Uncle Sam, and take his chances: he was ahead of the game. Taking the charge as a whole, I believe that is what “careless disregard” of the tax law means to jurors used to plain, if cliche, talk. The man in the street could not confuse it with “carelessness” in the sense of negligence.
I would affirm, with a vote of thanks to the jury for a job well done.