The opinion
TUTTLE, Circuit Judge
(dissenting).
I respectfully dissent. After careful consideration of the indictment and proof in this case, I am persuaded that there was prejudicial error. The indictment charged that appellant:
“ * * * did engage in the business of receiving wagers and that by reason of said occupation of accepting and receiving wagers he was an individual required by law, on or before November 13, 1953, to pay an *144 occupational tax on wagering * *; that on or about November 13, 1953, * * * the said Albert Gus Hodges did unlawfully fail to pay the said occupational tax on wagering * * *
“In violation of Section 3294(a), Internal Revenue Code; 26, U.S.C., Section 3294 (a)”. (Emphasis added.)
This language differs substantially from the definition of the offense in § 3294(a). The indictment plainly alleges the failure to pay the tax as the gist of the offense, whereas § 3294(a) makes the doing of an act the gist of the offense. 1
Moreover, the proof differed substantially from the indictment. It showed, not that Hodges was engaged in the business of accepting wagers as alleged, but at most that he was engaged in receiving wagers for or on behalf of King, who was engaged in the business.
Thus the indictment was technically defective and there was a technical variance from its allegations. The question which we are bound to consider is not whether there was proof that Hodges was guilty of a crime closely akin the one alleged, but for which he was not indicted; but indeed whether these errors were really prejudicial to Hodges.
Granted, then, that the evidence showed that Hodges received two wagers on behalf of a person liable for the tax upon engaging in the business of accepting wagers, without Hodges’ first having paid the tax, that he was, thus, guilty of that offense, and that one alone: does the record show that he put up any kind of defense against that charge? Absolutely not. His entire defense was conducted on the premise that the allegations of the indictment had to be proved, and were that premise correct, he would prevail. Hodges’ entire defense amounted to acknowledging the fact of having received wagers on behalf of King, without having paid the tax. In setting out earnestly to prove that he was not himself engaged in the business, Hodges put King on the stand and took the stand himself. Is this the way he would have defended himself if the indictment had charged the offense which it failed to allege, but of which the court now says he may stand convicted — by striving his utmost to establish it? I very much doubt it. No course could have been worse. If he had not taken the stand the jury might well have had some doubt as to his guilt; indeed, the court’s opinion points to Hodges’ admission on the stand that he had a pretty good idea what was in the envelopes, as helping appreciably to sustain the conviction. I cannot say that the defense undertaken, in view of the indictment’s allegations, was not reasonable or proper on the part of Hodges’ counsel; there is nothing in the record to indicate that either Hodges or his counsel was put on notice that he was being tried for any offense other than the one alleged in the indictment, or that the defense was adopted with any idea that it might be of no advantage or in fact disadvantageous to Hodges. In short, if the indictment had been drawn so as to charge the offense as it is defined in the statute and as the Government’s proof could show, Hodges would unquestionably have conducted a better defense. In this state of affairs I cannot say that he was not prejudiced or that his defense was not hampered by the erroneous indictment and the variance in proof, taken together.
*145 The majority believes that the gist of the offense in § 3294(a) is the failure to pay the tax. They do not deny that the text of that subsection unequivocally defines the offense as the doing of an act without previous payment of the tax; but take the position that the heading of that subsection, “Failure to pay tax” and the statements in the House and Senate Reports that “Special penalties are imposed for failure to pay the tax * * *,” and the provisions of § 3294 as a whole show that this text is erroneous and that the gist of the offense is the failure to pay the tax. These would be persuasive considerations indeed except that it is settled beyond question (and in my opinion, the rule is based on sound policy) that resort may not be had to section headings or to legislative history, to change the unambiguous meaning of the text of a statute. To quote only a few recent authoritative pronouncements on this point:
“But headings and titles are not meant to take the place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide or a synopsis. Where the text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner; to attempt to refer to each specific provision would often be ungainly as well as useless. As a result, matters in the text which deviate from those falling within the general pattern are frequently unreflected in the headings and titles. Factors of this type have led to the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text. United States v. Fisher, 2 Cranch 358, 386 , 2 L.Ed. 304 ; Cornell v. Coyne, 192 U.S. 418, 430 , 24 S.Ct. 383, 385, 386 , 48 L.Ed. 504 ; Strathearn S.S. Co. v. Dillon, 252 U.S. 348, 354 , 40 S.Ct. 350, 351 , 64 L.Ed. 607 . For interpretative purposes, they are of use only when they shed light on some ambiguous word or phrase. They are but tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain.” Brotherhood of R. R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 528-529 , 67 S.Ct. 1387, 1392 , 91 L.Ed. 1646 .
“ * * * [T]here is no need to refer to the legislative history where the statutory language is clear. ‘The plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.’ Gemsco, Inc., v. Walling, 1945, 324 U.S. 244, 260 , 65 S.Ct. 605, 614 , 89 L.Ed. 921 . This canon of construction has received consistent adherence in our decisions.” Ex parte Collett, 337 U.S. 55, 61 , 69 S.Ct. 944, 947 , 93 L.Ed. 1207 , 10 A.L.R.2d 921 .
“Where the language and purpose of the questioned statute is clear, courts, of course, follow the legislative direction in interpretation. Where the words are ambiguous, the judiciary may properly use the legislative history to reach a conclusion. And that method of determining congressional purpose is likewise applicable when the literal words would bring about an end completely at variance with the purpose of the statute.” United States v. Public Utilities Commission, 345 U.S. 295 , 73 S.Ct. 706, 717 , 97 L.Ed. 1020 .
I am firmly of the opinion, then, that the unambiguous text of § 3294(a) settles the question as to what is the gist of the offense therein. See also 12 Virginia L.Rev. 287, 288-290.
In taking this position that there was prejudicial error in this case, I am aware that we implied that somewhat similar indictments were well drawn in Contreras v. United States, 5 Cir., 213 F.2d 96 ; Sulli v. United States, 5 Cir., 213 F.2d 100 , certiorari denied 348 U.S. 826 , 75 S.Ct. 43 , 99 L.Ed.—; and Fernandez v. United States, 5 Cir., 213 F.2d 101 . *146 Those cases are distinguishable from the present one, however, since they involved willful violations covered by § 3294(c), while this case involves § 3294(a). That the gist of the latter offense is engaging in certain conduct without paying the tax is clear in my mind, whether that is true of the violation of § 3294(c) or not.
I would therefore reverse the conviction.
. 26 U.S.C.A. § 3294 (a):
“(a) Failure to pay tax.
“Any person who does any act which makes him liable for special tax under this subchapter, without having paid such tax, shall, besides being liable to the payment of the tax, be fined not less than $1,000 and not more than $5,000.” (Emphasis added.)
I think much support for the proposition that the doing of the act is the gist of the offense is found in the recent Supreme Court cases of United States v. Kahriger, 345 U.S. 22, 32 , 73 S.Ct. 510 , 97 L.Ed. 754 . and Lewis v. United States, 348 U.S. 419 , 75 S.Ct. 415 . These cases held that no one is compelled by the Act to pay the occupational tax and to register; consequently, the Act was held valid and not in conflict with the Fifth Amendment.