*1 868 testimony, tions, tiorari in her denied 48 S.Ct. if such there were 277 U.S. 1000; v. support 72 Ins. certainly would the not of themselves L.Ed. Aetna Life Co. voluntary 243; Tooley Planters’ (C.C.A.5) F.(2d) claim was no such that there Miss., to. Tunica,
act Bank York Life she saw and v. New as the act testified 603; Gregg (C.C.A.5) F.(2d) Mutual 32 F. Ins. Co. (C.C.A.6) Ins. Co. v. Life (2d) (C.C.A. Von Crome Ins. 567. v. Travelers’ Co. 350; 8) 11 F.(2d) New Ins. York Life physi- possibility that the insured’s 680; (C.C.A.5) F.(2d) Co. v. Weaver accidentally handicaps cal caused him to Bowers, Del Vecchio ar- fall from well the viaduct has been 229. gued, but is refuted the evidence handicaps) knowing conclusion, his In (well insured view of our other errors thoroughly acquainted assigned himself need not be discussed. end of the viaduct conditions at the Reversed and remanded. walking place looking back forth at only time after time. He knew not 'dangers its but the means it afforded to clearly accomplish by purpose manifested safety merely beyond stepping out wall, moving of the railing, clear of the leaping. testimony There that from UNITED TINKOFF v. STATES. youth up enjoyed watching the insured No. 5471. trains, fur movement of nishes no but that interest explanation at of his conduct Appeals, Circuit Court of Seventh Circuit prior and death. when the time he came to Oct. 1936. hi^ brought It was also Rehearing Denied Jan. survey geodetic was a the mark embedded adjacent concrete block to and level edge with the north of the viaduct where stepped the insured guard outside the rail. He have been curious to look that. But verdicts must be rested vague possibilities substantial evidence and conjured up conjectured by fertile minds do not suffice. Love v. New York 829; (C.C.A.5) Life Ins. F.(2d) Co. New York Life Ins. Co. (C.C. v. Trimble 849; A.5) F.(2d) New York Ins. Life 96; Co. v. (C.C.A.10) Doerksen F.(2d) Sears, Roebuck Co. (C.C.A.) & v. Peterson (2d) permits evidence think the We conclusion, within the self-destruction policy. Miller v. Trav
meaning of the Co., F.(2d) (C.C.A.7); Ins. elers Co. v. Miller (C.C.A.) Ins. Travelers’ 910; American Nat. Bank v. F.(2d) Con Casualty (C.C.A.6) Co. F.(2d) tinental 97; Co., York su New Life Ins. Love v. New York Life Ins. Co. pra; Burkett v. (2d) F. Wirthlin v. (C.C.A.9) 56 (C.C.A.10) F.(2d) Co. Life Ins. Mutual 138; Frankel v. New York 86 A.L.R. (C.C.A.10) Ins. Co. Life (C. Preferred Accident Ins. Co. Proctor v. (2d) F. Mutual Ins. C.A.6) 51 Life supra; New Gregg, York Life Ins. Co. v. cer- (C.C.A.5) Co. Alman
S70 *5 Tinkoff,
Paysoff Chicago, Ill., pro se. Chicago, Igoe, Atty., Michael L. U. S. of Depart l., Crouter, Atty., Earl C. Il Justice, Perkins, ment of and R. Carl and Lawler, Jr., Sp. Attys., Edward U. S. J. Treasury Department, all Washington, C., Hassenauer, and Leo D. Asst. U. J. Atty., Riley E. Campbell, and Sp. S. Asst. Atty., Chicago, S. both of U. Ill. 15th, and continued until Judge, same was October ALSCHULER, Circuit Before again on date November and the latter BALTZELL, District LINDLEY moved 3d. 26th defendant On October Judges. for allowance On October motion, court appellant’s LINDLEY, Judge. District allowing appeal and entered an order from conviction appeals á pro directed entered tunc it be nunc 14, 1932, returned an indictment June 6th July 1934. On November as of will- charging him and Newman stay extended of execution was further income evade attempt ful defeat and 30th, ex- and motion for until November New- year 1928 taxes due for the exceptions was bill of tension of to file time by him. companies man and two controlled continued Novem- until November 30th. On appellant was guilty, pleaded Newman appellant’s ber denied agent, revenue tried He is former alone. trial fixed the second motion new lawyer. public and a a certified accountant $15,000. 1st appeal bond On December on December appears extending order court entered an and was appeal had been allowed after his exceptions Decem- filing bill was, pro- pending, against his Mack, 20th 22d. On December Wikoff ber test, penitentiary at Leav- taken to Ross, & R. Seiter moved Orville enworth, sentence there serve the appearance addi- leave to enter their imprisonment which 18 months’ appellant. motion tional counsel for Said imposed, and that remained thereupon moved was allowed. Counsel he was when until December filing extend time for bill further of the Unit- temporarily released order exceptions. denied. This motion was Appeals of ed States Circuit grant- for an Defendant moved order then *6 petition for Tenth It' a Circuit. seems denied, ob- ing an This been the Kansas corpus habeas filed in had appeal viously prior had been a because Court, denied the District which court perfected. affidavit of recited Seiter relief, and, to appeal Circuit on the de- attorneys was one of the for that he court, Appeals, holding of that it was that par- fendant at the of the trial and time improper penitentiary commit him to the to therein; appellant ticipated had been against appeal will while from the his his upon penitentiary commit- taken to the judgment pending, him to was ordered be ment; that, of because the voluminous order released for a limited time in record, of additional time character the ap- court prosecute he in this required to file bill was within which a peal appears proceeding, other which exceptions. Apparently, court had of the report fully from the of case in more judgment mind that of conviction the Tinkoff (C.C.A.) Zerbst July, ex- that the time had been entered appeal, having This reinstated his court piring ripening was since that date then dismissed, which it had theretofore extend- delay into 6 further was months and that period the ed of the release fixed the ,and that, necessary, been diligence Circuit, court Tenth and under such by appellant, he have would not observed appellant liberty extension still on at request. needed to inaxe bond. February 2, at a term suc- On 15, 1934, appellant On was found June ceeding which the last of the or- that at guilty counts on both of indictment. entered, mentioned was heretofore ders July an order entered fixing On 3d an extension of time defendant obtained filing exceptions the time for bill of exceptions. filing bill of Thereafter days. July 24th On the court contin- upon ap- motion this court dismissed the July till ued 30th motion for new trial. peal, Tinkoff On the latter date court overruled the 1016, that, holding being no bill of judgment motion trial for new and entered file, there exceptions nothing on to conviction, July and on of 31st court review. fixed, again filing bill as of exceptions, September Later, court, 1934. On Au- at the solicita- earnest stay gust 17th the court extended its vacated appellant, tion of the of order the appeal, sentence and reinstated execution to October dismissal now August government 15th. 31st defendant contends that a bill On moved exceptions prepared since for an extension of which and filed is time within exceptions record; trial, properly part file bill of that the for a new ap- When the motion jurisdiction to defendant’s for new trial without trial court was subsequent 30th, if, to was July overruled on exception on the fol- prove any bill of that, lowing day, upon the term, became aware what he December evidence, newly trial court considered vital appeal, discovered perfecting of the entirely duty ex- he owed present cause the same to the jurisdiction of the lost so, within entering diligence. Failing with purpose court cept to do for the necessary he be held as were must to have abandoned the such orders term exception; Consequently and same. rightfully final bills filing for the Decem- order from that, appeal only motion made at an could be tak- term, 1934, July 31, of time en was that extending ber denied, exceptions having been file bill Irrespective conclusion, of this how- at sub- District Court the orders ever, we are confronted with a further nullity. sequent are terms and even more serious Judg- situation. ment of conviction July was entered on Let examine first us 30th. On October appellant prayed 27th present diligent in whether appeal an procured an order of the new trial. Aft ing motion for his second fixing pro nunc tunc time of original motion for new trial had er his prayer for and 31, 1934. Whether appeal allowance of July 30th, month July one lat been denied on accept we the earlier er, on al he made an oral motion based July date of 31st or the later Oc- newly Appel leged discovered evidence. tober 27th is importance not of vital newly tes lant admits discovered this connection. timony attention relied to his came 31st, July appears in the affi The effect of perfecting appeal wife, support davit of filed is to jurisdiction remove of the cause from motion, July that on 31st she obtained the trial court. That pow tribunal has no constituting relied information er thereafter enter order with re newly Despite this discovered evidence. spect to the case other than such as has July, knowledge in were not facts do exception bills of prepara 28th, sworn November almost to until tion of the record. jurisdiction It has no later, or filed with the until months appeal after an granted has been to act says 30th. November upon a motion for *7 trial, new to reduce judge large trial was out of the district a sentence, or modify otherwise or invalidate portion period, of that fact this does judgment the appealed may from. It at delay his bringing not excuse in to the the same term properly vacate the order attention of the District Court facts the allowing appeal, but, the in the absence newly constituting relied as discov of such vacation, order jurisdiction of to brought ered to his attention in evidence judgment passes deal with the from the presented July the court to until Appeals. District Court to the of Court Only later. one conclusion can months lodgment error, The of a of the filing writ drawn, and that that defendant was is appeal, of notice of and the allowing order disposition of second courting delay in his appeal, the jurisdiction all remove Diligence the motion for new trial. upper court. United States v. Habib et justifying extension of all-important factor 271; (C.C.A.) F.(2d) al. Levinson v. Knowlton v. Seneca grace the court. (C.C.A.) 449; F.(2d) States F.(2d) (D.C.) 36 Engineering Co. United States v. (C.C.A.) Radice 40 F. Life Equitable Insurance Co. In Moss v. 445; (2d) Mayer, United States v. 235 U. Iowa, F.(2d) (C.C.A.8), the of S. 35 S.Ct. Rogers well set properly said: “While it is (C.C.A.) F.(2d) Mayer for a trial in law v. Watson motion new tled that a case, promptness reasonable aft Hickey (C.C.A.) made with Mid entry judgment, of will toll the the Warinner, er Terminal R. Co. v. land statutory of the time within beginning Spirou (C.C.A.8); v. United taken, appeal the can be benefits an (C.C.A.2). that, follows not be extended to those rule should entry of the order allowing after the the diligence.” reasonable fail act with who appeal, jurisdic District Court had the any pass upon motion tion to to vacate the relief, seeking may appellant, here So trial any or for new and that judgment extended him the benefit of not have respect entered thereafter in order might he been entitled that that to which have complete nullity. diligence. is a had he acted with reasonable confinement, char- however, voluminous rial —his the Court, The District record, difficulty assem- acter appropriate may term the same enter at same, presented to the bling exception. filing of hills of orders for the —were justified, we properly who recited, was apparent history From the seen, refusing extension in further have filing bills that several extensions ex- preparation of bill of time expiring exception granted, the last were ceptions judgment, then almost 22d, as to months nigh 6 on December well old, beyond the of December months date Ob appeal had first been noted. after wisely 22d. The discretion court’s justified viously Court was the District handi- exercised. Defendant was not diligence not been had believing in observed, capped injured. To acted other- have on December 7th therefore us, wise, would have been it seems to ex denying further entered an order appel- of discretion in favor abuse lant, properly exceptions tension. No bill of ex- dilatory tactics at the encouraging approved the District could be conclude, pense there- diligence. We limit of De except filed within fore, exceptions on bill of now "might such time cember 22d or within re- powerless we file is one which are entered further order be extended to consider. ceive and entered No order was that term. at expired January, 1935. and the term However, of the circumstances in view ensuing Febru expiration, After its plea appel- earnest this case and the term, 1935, again ary the District Court lant, ground our we are satisfied to for fil fixing entered an order the time dil- defendant’s lack of decision exceptions. we con ing bill of This order comply with law igence, his failure to nullity, an entire view sider delay perfecting appeal, long or his that the term at which fact any steps rights, taking protect expired. fixed a Such was have delay clearly of desire to all indicative when it dismissed view of this court court. process and the functions bill ex Consequently the preferred study the rec- Rather we have December presented, subsequent to ceptions ord its mer- and to consider cause nullity. ais excep- its as if there a valid bill of tions on file. however, contends, Appellant 7th, motion submitted December demur contends appear then entered their counsel who improperly rer over to his indictment was him, presented with his was not ance appel charged ruled. first count authority; confined in was then lant employed by one Newman that, in im penitentiary; view of his counsel, aid, corporations to by Newman his bill of prisonment, filing the time for taxpayers advise, and assist automatically exceptions thereby ex of their in presentation preparation and *8 tended; the order and that the effect of appellant, joint and that returns come tax deny legal to him December 7th was Newman, willfully attempted to ly with however, that counsel appears, rights. It portion large of the and evade defeat appearance appel their for entered who tax, representing consoli $130,767.96, it affidavit in which” was stat filed an lant for 1928 of two income Newman dated net appeared in of them had ed that one by preparing filing tax corporations, appellant. counsel for as associate trial $11,895.22. only The second return partic such counsel’s record discloses The attempt charges a similar to defeat count attorneys were at trial. ipation $87,706.87 an income tax of for evade and Newman, nothing and there is of the officers 1928, individually, year any up to limitation record disclose filing showing return preparing appellant’s attorneys authority of payable. on the Each no tax due and count is he own affidavit that did (b) 146 upon than section the Reve other based representation. (26 this We find of 1928 U.S.C.A. 145 § nue Act authorize and any authority provides, part, had counsel to note), fact which as a willfully attempts in any person who man appellant making motion represent or defeat tax exceptions, ner evade shall be of time for bill of to extension felony. Each that, guilty count the- Appellant says of a follows denied. which in a language statute form present of the present, could have he been true, sustained the courts. Probably been himself. has United matter ed 23,. 55 Troy, 293 U.S. S.Ct. as States v. that he relied mate- the facts all 876 States, attempts 56 who to Capone 79 L.Ed. F.(2d) v. United evade or defeat a tax. 286 Troy, supra. denied United (C.C.A.7), certiorari States v. 927 Em U.S. mich v. 76 S.Ct. appellant might Whether have been States, (C.C.A.6), United charged also 1114 (c) under section of the 608, 45 S.Ct. certiorari denied 266U.S. wholly Revenue Act of 1926 is immaterial. v. United Gleckman presented There is ques time no States, certiorari F.(2d) (C.C.A.8), punishment. tion of double February denied Appellant contends that the trial 501, L.Ed. S.Ct. 996. denying court erred in his motion for bill Section 1114 Act (c) of Revenue particulars. Each count of indict (44 of 1926 Stat. 26 U.S.C.A. § ment went unusually great into detail (b) (1), it a criminal of makes facts, amounts, dates, setting up figures, willfully pres fense aid to or assist clearly and transactions. forth set return, entation of a false income tax alleged 'character of the evasions and the appellant insists that a conviction on method and means which same present charge (b) under section fully effectuated. Each count and suffi prosecution is no bar to a further on sec ciently appellant informed charges (c) tion 1114 Revenue Act of him; against there was abuse of the no Appellant jointly and Newman were denying District Court’s discretion in a bill principals charged attempting to particulars. States, Paschen v. United corporation evade the tax and the indi (C.C.A.7); Price v. United vidual tax of Newman. The counts States, (C.C.A.5), certiorari charged appellant employed to denied Ed. 78 L. prepare and make such returns. He.was (D. United States v. Wexler duty
under no
make
a return
an of
C.)
F.Supp.
otherwise,
ficer or
but contracted with
Newman to handle
tax
these
matters. Had
moved for an election of
the charge against him
been a failure to counts
government
which the
would
pay
tax,
make a return or
have
might prosecute.
All other counts were dis
reasonably
necessary
inyolved
been
to al missed. The two counts here
are
lege
duty
respect up
and show a
in that
they
similar in
charge attempts
de
but,
part,
on his
when
charged
taxes,
he is
first,
with feat income
those
willful effort
defeat
present
the tax
corporations,
second,
Newman
and the
return,
ing
allegation
duty
a false
no
himself,
those of Newman
same
part
necessary.
year.
The record
subject
shows that the
remarks,
Supreme
As the
closely
matter of each count was
related
evidently
legislative purpose
exempt
other;
no
to that of the
large part
that a
punishment
actively
one who
support
endeav of the evidence in
count
each
tax,
same;
ors to
whatever his relation
defeat
was the
that election would have
ship
taxp'-.yer may
be.
good purpose
United
appel
served
so far as
Levy
Troy, supra;
concerned,
States v.
lant is
but would have involved
(C.C.A.3).
877
length, patient considera-
at considerable
was
indictment
The
wrongfully overruled.
attempt
an obvious
tion
and
to
14, 1932. Demurrers
returned on June
every
el-
give
appellant
the court to
to
bill of
motion
and
were overruled
discloses
ement
fair trial. The record
of a
disposed of.
particulars
heard and
was
this
appellant
possible prejudice
to
to elect
government
require the
Motions
Quite
contrary. Were
connection.
set for
case was
disposed
and
were
such, we
11,
evidence of
10,
slightest
15 there the
6, 1933, May
February
trial on
29,
the fact that
tempted to overlook
May
1934.
on
again
and
and
necessity
appointment of
for the order of
unable
he was
Appellant
claims
2
presented
years;
counsel was not
indictment
Although the
procure counsel.
appellant. Clear-
appre-
that the fault
that of
appellant
was
been returned
had
ly
before,
of discretion and
years
these facts
was one
2
almost
hended
States,
United
abused. O’Brien v.
brought
the attention
were not
Reynolds
Coupled
(2d)
(C.C.A.7);
21,
with
v.
May
court until
record,
States,
(C.C.A.9);
F.(2d)
United
other circumstances
224,
States,
Hardy
a de-
delay
clearly
indicative
long
889, dis- S.Ct.
Isaacs United
The record
postpone
trial.
sire
States,
51,
487,
L.
associat-
had been
that counsel who
closes
Ed.
participat-
for 3 months
appellant
ed with
at
counsel at the trial
with other
ed
Appellant
prosecu
insists
that, how-
table. More than
the counsel
tion
barred
of limita
statute
experienced coun-
ever,
appointed
tions. The indictment was returned June
sat-
appellant.
counsel
to defend
Such
sel
1932, charging offenses on June
He cross-
isfactorily performed his duties.
September
less than
length
at
detail
examined the witnesses
years
the date of its
return. Fur
obviously
conception
a clear
thermore,
3-year period
was extended
lawyerlike
He made
the issues involved.
6, 1932, by
(a)
section
June
Appellant
every particular.
defense in
Revenue Act of 1932. United States v.
observe all
that counsel did not
contends
Clayton-Kennedy
(D.C.)
F.Supp.
times
suggestions;
of his
did not
all
appeal
(C.C.A.4).
dismissed 67
(appellant)
procedure
follow
as he
plea
Appellant filed a
of abatement
bring
advised;
not at all times
and did
competent
to the effect
there
was no
appellant desired
all of the evidence
against appellant
grand
evidence
before the
appel-
cross-examination as
or make such
jury which returned the indictment. The
rec-
lant desired. We have scrutinized
evidence
showed
books and records
carefully to
if there was
ord
ascertain
company
grand
before the
prejudice to
possible degree of
jury
agent
and that
internal
revenue
respect.
per-
himself was
in this
The
testified there.
evidence fails to show
participate in cross-
mitted
the court to
considered,
what other documents were
witnesses,
though his
even
examination
complete
failure to show that
fully and at
had cross-examined
counsel
competent
there was no
evidence before
Appellant partici-
length
great
detail.
jury.
inquire
The
court cannot
into
objec-
pated
making suggestions and
sufficiency
actually
the evidence
ap-
no time refused
tions.
court at
dStates,
presented. Holt v. Unite
218 U.
cross-examine, to ex-
pellant permission to
S.
31 S.Ct.
20 Ann.
trial,
amine,
fully in
participate
or to
Vaught, 52 F.(2d)
Cas.
Cox v.
ordinary
transcended the
rules
but rather
(C.C.A.10); Kastel v. United
counsel
limiting cross-examination
(C.C.A.2).
party.
We are satisfied from read-
appellant’s partici-
ing
the record that
Appellant contends that error was
help
pation
his cause and that he
did not
committed
the cross-examination of him
fully as well
have fared
if he
would
self. He testified that he was admitted to
given
a free hand. The cross-
his counsel
practice
Treasury
in 1923 before the
De
examination of the
Nora
witness
Newman partment
*10
he
and that
had continued in this
by appellant
good example
is a
we
what
practice
specialized
“up
present
to the
mind. The
have in
record
a trial
discloses
time.”
counsel
inquired
then
.Government’s
skillfully
by counsel, including
conducted
of him if was not true that
it
he had not
lawyer,
appellant,
thorough
himself
Treasury
practiced
Department
before the
cross-examination,
arguments
proper
to
all
the time to the date of the
trial.
not;
position
support
appellant’s
court in
answered that he had
“that
878
136,
125,
299;
gov-
Stephens
20 Wall.
22
suspension arose.”
States,
United
41
(C.C.A.9);
of sus- v.
F.(2d)
inquired
ernment
as to the date
Miller,
effective United States
F.(2d)
(C.
was
pension
replied
that it
v.
elementary C.A.2).
11,
seem
1930. It would
June
within the
that the cross-examination
cop
The bill book contained carbon
examination, the wit-
purview of the direct
appellant
ies of
ents,
to
numerous bills
cli
practiced
having
that he had
testified
ness
Newman,
in
including.
some 664
num
Treasury Depart-
continuously before the
jurors
ber. One
made
affidavit
ment,
only
material
to
fact which was
that the book was included in the exhibits
history
acquaint
help
jury
with the
room,
jury
taken
but
evidence
laid down the
professional life. He
respect
offered in
contains no show
this
bringing out
for a
bars
the
cross-examination
ing that the
con
book was examined or
suspended. New
he had been
fact that
way by
in any
any
sidered
jury
member of the
Wal-
Dredging
Alaska
Co. v.
York
Gold
way
any
or in
influenced their ver
bridge,
F.(2d)
(C.C.A.9).
wholly
dict.
It and its contents
ir
were
Closely
question related is the
relevant and immaterial to the issues. Af
permit
whether
it
error
to be
fidavits of three
were
witnesses
submitted
brought
that,
the fact by
cross-examination
government,
including
counsel who
suspension
They
in connection with his
tried
kept
party
the case.
show that each
Department, appellant
practice
had,
before the
its own exhibits
own
its
counsel
authority,
ended,
without
raised the amount
whereupon
table until the trial was
tax
from $480
$524.
of a
abatement bond
placed upon
all the exhibits were
a truck
admitted that he had made the altera
jury
by
He
tion,
and taken
iff;
room the
into
bail
that he did so
the re
representatives
insisted
government’s
that
quest of the internal
revenue collector.
place
truck;
did
this book
question,
objection
There was no
appellant
prox
that
observed in
testimony,
no motion to
and no imity
strike
required
of the truck and was
to state
exception preserved. Clearly,
is not
purpose
was;
being
where he
United
reversible
States,
error.
Paschen v.
jury
the members of the
did
examine
book;
Fillippon
it
(C.C.A.7);
did not affect their de
76,
Co.,
decision;
Vein
39 liberation
it
v. Albion
Slate
U.S.
was not
them;
435,
Furthermore, ap
by
were tax purpose charged. It if for the of verification of is sufficient duced substantial a tax was portion used auditors who defeated items testified and evaded. States, United 51 F.(2d) made available to both sides for ex O’Brien expert They (C.C.A.7), certiorari denied 284 witnesses. U.S. amination only appeared S.Ct. 76 L.Ed. facts that Gleckman contain in evidence. otherwise wholly (C.C.A.8), immaterial United they denied. Feb. were offered or received or certiorari whether taken to the jury Driggs, room. Burton v.
879
wrongful
Appellant
insists the
(C.C.A.2).
Miro,
F.(2d) 58
v.
States
60
ly
documentary evidence
admitted certain
charged
of the indictment
The first count
relating
the
char
$130,-
a transaction of
same
to
evade
defeat and
attempts
willful
to
included
acter
checks, contracts,
in 1927. This evidence
$142,663.88.
of
income tax
767.96
of an
documents
and other
before
There
evidence
was substantial
bearing upon withdrawal of
income
from
tax due
jury
income
that
year
by appellant
Newman for the
$108,267.55 in
corporation for 1928 was
Newman,
the oth
principal
deficiency
one as
$142,663.88, leaving a
stead of
They
ad
specialist.
er
were
as his tax
$96,371.63.
paid
The second
in tax
upon
ques
bearing
missible
their
$87,706.87 due
charged
an evasion
count
plan fol
in the
tion motive and intent
gov
evidence of
from Newman. The
years.
prior
well
lowed in 1928 as
as
the tax due
ernment tended to show
States,
117,
v. United
$101,609.75, Allis
U.S.
amounted to
from Newman
36,
S.Ct.
39 L.Ed.
v. United
Chadick
nothing
reported. There was
instead of
States,
States,
supra; Emmich v. United
respect,
proof
sufficient
substantial
States,
342,
supra;
Wood v. United
Pet.
support
of the indictment.
to
the averments
Furthermore,
ad
they
L.Ed.
were
thing and
intangible
is
Willful
intent
relationship
missible
their
necessary.
because of
to
proof
direct
is
the occurrences with reference to 1928.
question
of willfulness is one
Rather
jury
fact
to be determined
complains
Appellant
of the admis
Capone v.
all the circumstances.
United
letter
himby
sion of a
written
to Newman
States, supra; United States
Commer
February
advising
the latter
ford,
28,
certio
(C.C.A.2),
being unjustly
that he was
burdened with
759, 53
rari denied 289 U.S.
S.Ct.
soliciting
excessive taxation and
busi
evi
being
1502. There
substantial
L.Ed.
prepared
say
ness. We are not
to
support
dence in the
the conclu
record to
bearing
this exhibit did not have some
attempt
sion
was willful
upon
question
appellant’s good
faith
evade,
finding
abide
this court must
supervising
Newman’s tax
affairs
States,
jury.
of the
Paschen v.
su
United
make the
thus
admission erroneous.
It
States,
pra;
Burton
United
U.S.
appellant’s
evidence of
method in so
6 Ann.
S.Ct.
liciting
procuring
business and
Newman’s
Segurola v.
Cas.
relationship
tax business and the
between
been an
trial court
he must be credited with the time
jury’s
called the
attention
law
served.
In view of our conclusion as to
respect. Any
charge
further
was un
this
necessary.
issue,
pass upon
the latter
we shall not
the former.
charge.
We have examined
entered,
judgment
At
the time
complete
every respect.
The
full and
5 of Rules of
rule
Practice
Procedure
^nd
explain
degree of
careful
Cases,
promulgated
in Criminal
required,
presumption of
proof
inno-
Supreme Court in
(28
U.S. 661
cence,
rights
appellant.
It gave
and all
following section 723a),
U.S.C.A.
had not
complete
instruction
the na-
full
Hence,
yet
effective.
become
determin-
included
of the offense
indict-
ture
ment,
impris-
ing
legality
necessary
proof
to sustain the
far,
onment
must
thus
we
look to the law
governing,
and the law
and included
same
prior
pronouncement.
existed
to such
as it
requested
appellant, except
everything
not well
founded. All
requests which
pertinent
are
statutes
28 U.S.C.A.
requested instructions refused are
properly
869 and 874. Section
is as
§§
follows:
fully
general
here
charges.
covered
“Every justice
judge signing
or
a cita-
States,
United
U.S.
Coffin
error, shall,
any writ
tion on
except
Sandy
White v.
S.Ct.
brought up by
the United
oases
States
department
by direction
Government,
good
take
and sufficient se-
curity
plaintiff
assignments
in error
examined all
have
We
prosecute his
ap-
full
shall
writ or
given
have
consideration to
error ánd
*13
security
give
directed to
effect, and,
peal
to make
if lie fails
by De-
upon appeal
appearance
for his
damages and
plea
all
good,
answer
shall
7th,
6th;
failing to
on December
cember
costs,
supersedeas and
writ
where the
is a
bond,
was taken
and
he
only
secure
surrendered
execution,
stays
where
all costs
or
com-
of
penitentiary upon warrant
supersedeas
it
a
is not
aforesaid.”
trial court
time did the
mitment. At no
or
“In
Section
reads as follows:
Appeals di-
any judge of
Court of
the
may be
su-
a
of error
a
case where writ
allowing appeal should
rect
operate
order
may
such
persedeas,
obtain
the defendant
at no
did
supersedeas;
aas
error,
supersedeas by serving
of
the writ
appellant attempt
procure
direction.
such
copy
the adverse
lodging a
thereof for
Supreme Court in
language
The
of the
rec-
party in the
office where the
clerk’s
Claasen,
directly
point.
supra,
In re
is
Sundays
remains,
days,
sixty
within
ord
exclusive,
**
*
There
said:
“Section
it was
judg-
of the
rendering
after the
super-
provides
for the manner which
of,
complained
giving the secu-
ment
and
may
of error.
sedeas
be obtained
a writ
issuing
rity required- by law on the
of the
error, by
by serving
lodg-
It is
the writ of
process
stay
he
citation. But if
desires to
party
ing
for the
copy
thereof
adverse
judgment,
may, having
on the
he
served
where the record re-
the clerk’s office
aforesaid, give
his writ
error as
mains,
exclusive,
days, Sundays
within
required
sixty days'
security
by law within
judgment
com-
rendering
after the
plained
by
judgment,
after the rendition of
or
such
of,
security required
giving
and
justice
permission
afterward with the
of a
But,
issuing
on the
of the citation.
law
judge
appellate
or
such cases where a writ
court. And
may
security required
a crim-
as there is no
error
case,
supersedeas may
inal
be obtained
supersedeas,
not issue
executions shall
by merely serving
writ
the time
within
expiration
days.”
until the
of ten
prescribed
any security,
giving
without
promulgation
present
Until
provided
justice
signs
who
citation
rules,
applicable
governed
these statutes
the writ shall
as a
operate
directs that
su-
procedure
Claasen,
in criminal
In
cases.
re
may
persedeas, which he
do when no se-
735, 738,
200, 11
140 U.S.
S.Ct.
required
taken.” (The
is
or
curity
italics
Parker,
Hudson
court.)
are
of this
those
39 L.Ed.
Kitchen v. Ran-
dolph, 93 U.S.
.which application quoted proviso. here of Besides, in judgment, our con appellant. tention comes late too to avail In all these drawn long proceedings proposition brought there was no such the attention petition of the rehearing being challenge the first thereof. appellate If one judges previously in fact heard in the district question” “cause involved on *16 (cid:127) appeal, would not of itself have deprived appellate court, jurisdic- An tion. rights might well aware of his point, proceed waive appellate before ing hear- There is here no con- appellant, lawyer tention that the himself- experience years attorney companies, fully Newman and was not cognizant of the situation. In such cir- quite it would be cumstances intolerable to permit presentation him to withhold point hearing the appeal until after the against and its decision him. In Delaney S., v. U. U. S. 206, 207, 68 referring statutory proviso applied to a similar same situation, said: “The section not have seems attracted the attention petitioner appreciation until he had experimented with other means review the, from conviction adjudged and relief may be
against him. that he did thereby may waive section which ex- policy press solicitude law to free from keep pre- its tribunals bias judgment, remedy rather than afford yet litigant, it would to a seem that he permitted to assume the com- should petency of the tribunal to decide for him Denver, Melville, D. (Ed- Colo. Max incompetency to decide against and its him. Jensen, City, Utah, gar C. of Salt Lake on certainly suggests the idea His action appellants. brief), afterthought with him that it was .an the situation Matheson, M. Atty., Scott Asst. U. S. was intended section to relieve.” City, Shields, (Dan Utah of Salt Lake B. Atty., Boyden, S. U. S. Asst. Coblentz, -John In State v. 169 Md. Atty., Utah, City, U. S. both of Salt Lake court, passing on 185 A. A. brief), for the United States. issue, employed comparable similar lan- guage. PHILLIPS, McDERMOTT, Before BRATTON, Judges. Circuit denied. Petition