The opinion
KERNER, Circuit Judge
(dissenting).
I am unable to concur in that part of the opinion holding that the District Court erred in instructing the jury.
The gist of the offense was the willful attempt to evade and defeat income taxes. Whether there was such a willful attempt in this case was the province of the jury to determine from the evidence. In passing upon the sufficiency of the proof, it is not our province to weigh or determine the credibility of the witnesses. We must take that view of the evidence most favorable to the appellee and sustain the verdict of the jury if there is substantial evidence to support it.
The record clearly discloses that Howard Clark was bookkeeper- for the Consensus Company and that in keeping the books he took his instructions from Kruse, Sr., who told him to charge 30% of the net profits to Cecelia as dividends and the remaining 70% would be distributed to Molasky, Kruse Sr. and Ragen, Sr. as commissions.
The record also discloses that at the close of each week all of the profits remaining after the payment of the operating expenses were distributed weekly in proportion to the number of shares owned by the stockholders. The profits were called dividends on all of the work papers of the bookkeepers. While it is true that what they were styled by the defendants did not necessarily determine their character, nevertheless it was for the jury to say from all the evidence whether there was here a willful attempt to evade and defeat the just payment of income taxes. This the-jury did. I believe there was ample proof *141 of acts and that the reasonable inferences flowing therefrom warranted the verdict that there was a willful attempt to evade the payment of income taxes.
The amount of the tax which it was charged was attempted to be evaded was not of the gist of the offense, Gleckman v. United States, 8 Cir., 80 F.2d 394 , nor was it necessary that the Government prove an evasion of all the tax charge, Tinkoff v. United States, 7 Cir., 86 F.2d 868 .
It is elementary that any specific given instruction must be considered in relation to the entire charge. The instructions were exceedingly fair and thorough, and when the entire charge is considered, it is clear the jury was distinctly called upon to decide whether the defendants entered into a scheme to willfully evade the payment of income taxes.
The judgment as to the appellants, James M. Ragen, Sr., Arnold W. Kruse and Lester A. Kruse, should be affirmed.