# Petition for Writ of Certiorari — Himmelfarb v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2356%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1949 - **Citation:** 338 U.S. 860 ## Text ” Ooo —— SS eraens ool GI Cea 46.7) ORO SUBJECT INDEX. PAGE Petition for certiorari to the United States Court of Appeals for the Ninth Circuit........................... ee a ee 1 A. Opinion below : c 1 Be, amma, nnn nnnnseecerensespeewsnssassesevcsnecsnensonanpnnntneonecsane 2 C. Questions presented 2 D. Summary statement of matter involved................................ 6 es eI UII, MUIR cccrsteneneusnistinhignstalenastncinisipipinssiians 6 2. Double jeopardy 7 3. Immunity from prosecution...............................-. 8 4. Privileged communications 9 5. Violation of Fifth Amendment to Constitution............ 10 6. Res judicata, evidence pertaining to Counts 3 and 4 submitted to jury 10 7. Prejudicial misconduct of government attorney........ 11 8. Erroneous, confusing and conflicting instructions...... 18 E. Reasons relied on for the ai:wance of the writ................ 21 Brief in support of petition for writ of certiorari-....................... 27 I. The opinion of the court below.......................ccccsccccccnsescsecsnees 27 II. EL oes ee " ahaa 27 III. Statement of the case sihaitininhinbasbahanicesiigsiabisinaiidia 28 IV. Specification of errors 28 ii. PAGE V. Argument -. 31 1. Double jeopardy th Astin toliatitn-sanaoancoemeninceeginiannds 31 2. Yetitioner was immune from prosecution... 39 3. Privileged communications - 42 4. Compelling the defendant to be a witness against him- self in violation of the Fifth Amendment of the Con- stitution 46 5. The trial court committed error in denying defend- ant’s motion to strike all the evidence pertaining to Counts 3 and 4 upon which the court had previously acquitted said defendant 49 Res judicata 49 6. Misconduct of counsel... 56 , 7. Erroneous, confusing, conflicting instructions and fail- ure to instruct : 59 Closing 64 — TABLE OF AUTHORITIES CITED. iii. CASES. PAGE Allis v. United States, 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91.. 51 Awtio v. Miller, 92 Mont. tC e:6 e 5. oe 47 Barnes v. State, 61 Tex. Cr. ei eS SS a 62 Barrett v. Bigger, 17 F. 2d 699; cert. den., 274 U. S. 752.......... 32 Beach v. State, 138 Ga. Se Se) 62 Berger v. United States, 295 U. S. 78, 55 S. Ct. 629..............----- 57 Black v. State, 9 Tex. App. 328 a 36 Bleirer v. Wolf, 23 Wash. 2d 368, 161 P. 2) Se 47 Bonnifield v. Thorp, 71 Fed. 924; dism., 83 Fed. 1002..............-- 31 Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746 .... 39 Butler v. Gill, 34 Okla. 814, 127 Pac. 439.......... a Calvert v. City of Seattle, 23 Wash. 2d 817, 162 P. 2d 441........ 47 Carruthers v. Reed, 102 F. 2d 933; cert. den. 307 U. S. 643, 83 L. Ed. 1523. . 29 Chattock v. United States, 77 F. 2d 961; cert. den., 296 U. ee 51 Cliett v. State, 167 Ga. 835, 147 S. E. 35, 39 Ga. App. 510, 147 S. E. 724 om 32 Collier v. Los Angeles Ry. Co., 60 Cal. App. 2d 169, 140 P. 2d 206 47 Commissioner v. Molten, 230 Px. 399, 79 Atl. SSR enes 62 Commonwealth v. Gray, 249 Ky. 36, 60 S. W. 2d 133...............- 32 Cornero v. United States, 48 F. 2d 69.........-..-..---:-e-esesee 33, 36, 38 Counselman v. Hitchcock, 142 U. S. 547......---...---scsssseeeeeseeesnsees 39 Craig v. United States, 81 F. 2d 816, 83 F. 2d 850. 22, 36 Crow v. State, 89 Tex. Cr. 149, 230 S. W. 148............... . 36 Davidson v. Gifford, 100 N. C. 18, 6 S. E. 718............... «ae Emmich v. United States, 298 Fed .5; cert. den., 266 U. S. 608.. 51 Farkas v. United States, 2 F. 2d 644..........------------cscseeeeseeeeseeesenes 51 Fina v. United States, 46 F. 2d 643 siclindianbagtelsanil 24, 47 Fish v. United States, 215 Fed. 545, 132 C. C. A. 56, L. R. A. 1915a 809 a iv. Gart v. United States, 294 Fed. 66......... ; Gillespie v. State, 5 Okla. Crim. 546, 115 Pac. 620 (Ann. Cas. SOD i Ba intern htnchecnemtentrinnenteinceentinns w. 46 Glasser v. United States, 315 U. S. 60 PK, 3 Meat 23 Glover v. Bradley, 233 Fed. 721 acon Glover v. United States, 147 Fed. 426, 77 C. C. A. 450.0... 62 Hartzell v. United States, 72 F. 2d 569; cert. den., 293 U. S. 621, 55 S. Ct. 216. 22, 36 Hawes v. State, 88 Ala. 37, 7 So. 302 wa. 43 Hightower v. State, 39 Ga. App. 674, 148 S. E. 300... 2. 63 Hipple v. State, 191 S. W. 1150, I. R. A. 1917(d) 1141............ 32 Hoge v. People, 117 Ill. 35, 6 N. E. 796. ... 62 Holt v. State, 160 Tenn. 366, 24 S. W. 2d 886.2000... 31 Horton v. Atchison, Topeka & Sania Fe Ry., 161 Kan. 403, 168 a eee ht EG, Skene a thn RR 47 Jackson v. Superior Court, 10 Cal. 2d 350, 74 P. 2d 243............ 36 Jacobs v. State, 85 Tex. Crim. 505, 213 S. W. 628....00 32 Jemma Wi eT, TG, naa nnn 23 Kinard v. United States, 68 App. D. C. 250, 96 F. 2d 522... sakes tiielceinbichadakeheticdante ch teosipalidicattiasdasentestimeainccaeeptccakamntinamnnsiinant 24, 59, 60 Beemer v. aed State, 11 FF. Be Fee... 24 Kutler v. United States, 79 F. 2d 440.0000. 63 LaLance & Grosjean Mfg. Co. v. Haberman Mfg. Co., 87 Fed. 363... .24, 42, 44, 45 Lane v. State, 44 Fla. 105, 32 So. 896............. 62 Latham v. United States, 226 Fed. 420 ....0.0.....ccccccccccccceeeececceeeees 56 Lain Cee rer; Tie BF. Fancast cin 27 Lonergan: v. United States, 88 F. 2d 591; cert. granted, 58 S. Ct. 18, 302 U. S. 663, 82 L. Ed. 512; rev., 58 S. Ct. 430, 303 U. S. 33.. & 23, 47 Malone v. United States, 94 F. 2d 282.00... cccccccecccccceceeceeseeeeeee 51 SG. DUI, EOD Bs GD OI ctietentnscinennnnnnteonniisicnsnnaniniapioanl 24 McKenzie v. State, 11 S. W. 2d 578, 111 Tex. Crim. 299............ 35 a v. PAGE McKnight v. United States, 115 Fed. 972, 54 C. C. A. 358...... ss csaecenssnnnssneeeeessennnunussennnnnansseconamapussonsanauussenssnssnsneneneseerenns200te 24, 46, 48 Mills v. United States, 164 U. S. 644, 17 S. Ct. 210, 41 L. Ed. 584 .n----o--0-=-- 23, 62 Monday v. State, 160 Tenn. 258, 23 S. W. 2d 656.......-..-.-------- 35 Montague v. Com., 10) Gait. PGT eacecsinrescsenenseeneccenacsenovere=szonce 36 Naftzger v. United States, 200 Fed. 494.........--------------sseesessreenseeee 63 New York Central R. R. Co. v. Johnson, 279 U. S. 310, 49 S. Ct. 300, 73 Le. Ed. 706...-cocorsn-seeeceeecnmnnnseensennnnnnsssenennnnnnnnnssssees 57 Nicola v. United States, 72 ye | Eaaeam 24, 60 O'Brian v. Com., 9 Bush. 333, 15 Am. R. 715. 35 O’Brien v. Schellberg, 59 Cal. App. 2d 764, 140 P. 2d 159........ 47 People v. Albertson, , a. @') a 52 People v. Best, 13 Cal. App. 2d 606, 57 P. ip Ae 59 People v. Deysher, 2 Cal. 2d 141, 40 P. 2d 259 63 People v. Grahm, 176 App. Div. 38, 162 N. Y. Supp. 334........ 62 People v. Handley, 100 Cal. 370, 34 Pac. 853 63 People v. Lapique, 10 Cal. App. 669, 103 Pac. 164...........-......-- 63 People v. Maughs, 149 Cal. 253 62 People v. Putnam, 20 Cal. 2d 885, 129 P. 2d 367........-.-.------ 59, 60 People v. Strassman, 112 Cal. 683, 45 Pac. 3.........-----.ccsc-sseesseeee 63 People v. Young, 100 Cal. App. 18 Pharr v. United States, 48 F. 2d 767.. 57 Pierce v. United States, 86 F. 2d 949.. 57, 58 Price v. McComish, 22 Cal. App. 2d 92 - 31 Redsted v. Weiss, 71 Cal. App. 2d 63 32 Rose v. United States, 128 F. 2d 622...........-----------seeesseeeeeesseesenss 51 Spies v. United States, 317 U. S. 492 23 State v. Crain, 22 Mo. 54, 100 S. W. 422 vse OB State v. Dedge, 101 N. J. L. 131, 127 Ey I sinicesasaancuannonennics 35 State v. Helton, 234 Mo. 559, 137 S. W. TI 1d ies ceaddonbabeontin 62 State v. Merkley, 74 Iowa 695, 39 N. W. 111 : 46 State v. Slorah, 106 Atl. 768, 4 A. L. R. 1256.........-------------e-seeeee 36 State v. Stiff, 117 Kan. 243, 234 Pac. 704. : . 32 State v. Willie, 130 La. 454, 58 So. 147... .. 36 United States v. Armour & Co., 64 F. Supp. 855.0000... 39 United States v. Howard, 26 Fed. Case No. 15403, 3 Summ. United States v. Monia, 317 U. S. 424, 87 L. Ed. 376....23, 39, 40 United States v. Newman, 25 F. 2d 357; rev., 28 F. 2d 1684... 31 United States v. Oppenheimer, 242 U. S. 85, 61 L. Ed. 161, 37, SA Oc PRIN SUI ceemiotnabeoncerdhtciinnercceeusonnannarienininpatbinemaakapecniony 23, 55, 56 United States v. Perez, 9 Wheat. (22 U. S.) 579, 6 L. Ed. ICSE ce et a ae ios rc econnssesscesnnseeenseeen 22, 23, 33 United States v. Perlstein, 120 F. 2d 276..0000......cccccccccccccceeceeeee 57 United States v. Smith, 27 Fed. Cas. No. 16,341, 1 Sawy. 277.. 35 United States v. Watson, 28 Fed. Cas. No. 16651.........0...... 31, 32 Van Blaricum v. People, 16 Ill. 364, 63 Am. D. 316............0....... 36 Volkmor v. United States, 13 F. 2d 594.200... cele tceeeceee 57 van pees Cee, Ge Ww. Oe PO as 23 Ee I I iret ora sectpntensnnnnennenceoccnseeanenrastonton 23, 33 rae @, Sete. 455 A. Sh, So oO. OPO... ee 35 Walshon v. Stainton, 71 Reprint 357, 2 Hem & M. 1................ 43 Weathers v. United States, 117 F. 2d 585............ 57 i Ae Ug Gl Oe eens 51 Welsing v. United States, 218 Fed. 369, 134 C. C. A. 177.......... 35 Westberg v. Wilde, 14 Cal. 2d 360, 94 P. 2d 590.000.000.000... 48 STATUTES Federal Rules of Criminal Procedure, Rule 26............02.....220...:.00 42 Food Conservation Act, In re, 254 Fed. 893................... 24, 55 Internal Revenue Code, Sec. 41 5, 20 Internal Revenue Code, Sec. 48 ........ 5 Rules of the Supreme Court, Rule 38 27 Statute of July 7, 1844, Sec. 2, par. E (5 U. S. C., Sec. 261)... 43 PAGE United States Code, Sec. 145A. -......-.--s--ccecesneeseeeessesennseseeees 6, 30, 60 United States Code, Title 26, Sec. 3616, DOE, Pissceiccasl 6, 30, 59 United States Constitution, Fifth Amendment............. 2, 21, 23, B United States Code Annotated, Title 18, Sec. ___ SRC ara 42 United States Code Annotated, Title 26, Sec. 3115(a) .............. 41 United States Code Annotated, Title 26, Sec. 3200, p. 06......... 43 TEgxTBOOKS Bacon’s Abridgment on Juries, p. 365.......----.-----------ccescccssceeeseene 35 Bishop, New Crim., Sec. 1014...-...---o----c-seeceesseee 36 Bishop, New Crim., Sec. RII fini cancceciunaienigasbensinlaniinviaioteansinisne 36 3 California Jurisprudence, p. 667..............-.. 4 32 Cooley’s Constitutional Limitations (6th Ed.), p. 399.................- 36 16 Corpus Juris, p. 255 33 16 Corpus Juris, p 1054 ..........-.-c--se-csecsccecenesesseneeesensenneensensennennsencs 61 31 Corpus Juris, Sec. 445, p. 837 63 34 Corpus Juris, Sec. 1154, pp. 742, 743.......---.------c-sseescceseeeneeneeees 54 35 Corpus Juris, Sec. 404%, p. 346 34 70 Corpus Juris, Sec. 538, p. 501 43 7 Corpus Juris Secundum, pp. 897, 922, note 50O...........-..--------- 31 16 Corpus Juris Secundum, Sec. 2451, p. 1023.........-.---.---------0 60 22 Corpus Juris Secundum, p. 400, note 67.. 32 50 Corpus Juris Secundum, p. 927, mote 5............----s--sesssseeee 22, 36 50 Corpus Juris Secundum, Sec. 251, p. 1009 «: 3S 14 Encyclopedia of Evidence, pp. 646, 647 46 Internal Revenue Bulletin, Vol. XV-2, p. 341 43 2 Ruling Case Law, p. 995 32 Thompson & Merriam on Juries, Sec. 273 36 1 Thornton on Attorneys-at-Law, p. 386... 32 Wharton’s Criminal Law (12th Ed.), Sec. 395 33 8 Wigmore on Evidence (3rd Ed.), Sec. 2301, p. 584.............- 43 ' , NR RYE to —EE ——E IN THE Supreme Court of the United States October Term, 1949. i cnitilinbachi Sam ORMONT, Petitioner, US. Unitep STATES OF AMERICA, Respondent. Petition for Certiorari to the United States Court of Appeals for the Ninth Circuit. To the Honorable, the Supreme Court of the United States: Comes now Sam Ormont, hereinafter styled petitioner, and, applying for a writ of certiorari to the United States Court of Appeals for the Ninth Circuit, respectfully shows: A. OPINION BELOW. The opinion of the Court of Appeals appears in the record [R. Vol. V, pp. 1646-1707]. The judgment and sentence of the District Court also appears in the record [R. Vol. I, pp. 139-140]. ro a B. JURISDICTION. Judgment of the Court of Appeals sought to be reviewed was entered on June 3, 1949, and petitioner’s petition for a rehearing before said Court was timely filed and was denied on August 1, 1949 [R. Vol. V, p. 1710]. The jur- isdiction of this Court is invoked under Title 28 U. S. C, Section 1254, Subdivision 1. C. QUESTIONS PRESENTED. 1. Was the petitioner's constitutional rights against being twice placed in jeopardy violated? 2. Where a jury was duly impaneled, accepted, and sworn, and defendant thereby placed in jeopardy, did the Court have the right thereafter, and without defendant’s consent, to discharge that jury merely because, while the jury was being impaneled, and before it was so passed, accepted, and sworn, the U. S. attorney had merely made reference to an O. P. A. case, but no challenge to the panel or to any of the jurors was interposed by any of the parties on the ground of such reference, but all the parties with full knowledge of said statement accepted the jury, thereby con- clusively waiving all grounds of challenge? 3. Under such circumstances above delineated, has the Court the right to again place the defendant in jeopardy before another jury where proper objection to so doing has been previously made without violating the Fifth Amendment to the Constitution of the United States? el | _— 4. Was the petitioner’s constitutional right against being compelled to be a witness or furnish evidence against him- self violated? S. Where petitioner was subpoenaed and pursuant thereto was interrogated by the Grand Jury respecting profits and illegal payments he had made for slaughtering livestock for the year 1944 was he thereby immune from prosecu- tion respecting his income and income tax? 6. Where certified public accountant is employed by the attorney for a defendant to help such attorney and as his agent, in preparing income tax returns and documents and giving advice pertaining thereto for the client, are com- munications by the client to such attorney and accountant privileged ? 7. Was the defendant’s constitutional right against being compelled to be a witness against himself, violated where the Court intimated to the U. S. attorney, before the jury, that he might resort to the processes of the Court to com- pel the defendant to produce his books and pursuant there- to, the U. S. attorney caused the Marshal to serve a subpoena duces tecum on the defendant in open Court, in plain view and presence of the jury, and where no ad- monition to the jury to disregard such error and conduct was given? TT NT = 8. Was it error for the Court to refuse to grant a motion to strike the testimony of witnesses pertaining only to counts of the indictment on which the Court had preyj- ously acquitted the defendant? 9. Did the acquittal by the Court of the defendant for Counts 3 and 4 for prior years, 1942 and 1943, constitute res judicata so as to prevent the prosecution from using said evidence for the purpose of determining wilfulness in the year 1944? 10. Did the argument of the U. S. attorney constitute preju- dicial misconduct? 11. Was the Court of Appeals justified in holding that the activities of the U. S. attorney were merely subject to criticism and not prejudicial misconduct? 12. Where conflicting, confusing, and erroneous instructions were given to the jury, can the Court say that no preju- dice was suffered, and that the jury followed one instruc- tion and not the other in arriving at a verdict? a. Where indictment specifically alleged the manner and means employed by defendant to commit the alleged attempt to evade which consisted of only two, namely: (1) filing an alleged false income and victory tax return, and (2) by concealing from the Collector and officers of the United States the correct gross and net income, was it not prejudicial error for the Court to instruct the jury ee ae teeehediinesmemmanatal | ie in effect that if they found defendant had attempted “in any manner” to evade his tax they could find him guilty? b. Was it not error for the Court to instruct the jury that a taxpayer is required to report all sums “earned” for the calendar year in which the same were “earned” when such taxpayer was on a cash basis? c. Was it not prejudicial error for the Court to in- struct the jury in effect that they were to determine whether or not a substantial part of $71,000.00 was in fact received by each of the defendants as part of his in- come from the Acme Meat Company operations, without further instructing the jury that even if they so found that, it would be further necessary for the jury to find that such money was so received in the calendar year 1944, and was it not error in the same instruction to tell the jury that they must determine whether or not “books and records” were kept as required by the statute. d. Was it not error to quote Section 41 of the Internal Revenue Code which said in part: “But if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such methods as in the opinion of the commissioner clearly reflect his income.” (Italics supplied. ) without any evidence in the record showing that the com- missioner had determined any method or if so what such method was, and which section further stated: “If the taxpayers annual accounting period is other than a fiscal year as defined in Section 48 * * *” without also instructing the jury as to the contents of said Section 48. — e. Did not the Court, by said instruction, submit to the jury the decisions of questions of law or matters to be determined by the Commissioner of Internal Revenue? 13. Did not the Court err in failing to instruct the jury on his own motion that they might find the defendant un. der the indictment guilty of a misdemeanor under Subdi- vision A of Section 3616 of Title 26, U. S. C., and also Section 145 A of the same book. D SUMMARY STATEMENT OF MATTER INVOLVED. 1. Indictment and Plea. Petitioner was charged by indictment of the Grand Jury in this case, jointly with one Phillip Himmelfarb in Counts 1 and 2, and singly in Counts 3 and 4. The first count charged petitioner and Phillip Himmelfarb with attempt- ing to defeat and evade a large part of the income tax due and owing by Sam Ormont to the United States of Amer- ica for the calendar year 1944 “by preparing and causing to be prepared and filing and causing to be filed with the Collector of Internal Revenue for the Sixth Internal Revenue Collection District of California a false and fraudulent income and victory tax return * * *” (Italics supplied.) [R. Vol. I, pp. 2-3.] Count 2 charged the defendants jointly with an attempt to defeat and evade a large part of the income due and owing from Phillip Himmelfarb for the calendar year 1944. scilliiee Count 3 charged the petitioner, Sam Ormont, with attempt- ing to evade and defeat part of his income tax for the calendar year 1943. Count 4, a similar charge against ‘tioner, Sam Ormont, for income tax for the calendar year 1942 [R. Vol. I, pp. 2-6]. To all of which Counts petitioner entered a plea of not guilty. 2. Double Jeopardy. A jury was duly impaneled and sworn to try the de- fendants on May 22, 1947 [R. Vol. I, p. 242]. There- upon, William Katz, Esq., attorney for Phillip Himmel- farb only, in behalf of his client, made a motion to declare a mistrial and discharge the jury for the reason that the prosecuting attorney, William Strong, during the selection of the jury (before it was accepted and sworn) “made a reference to a pending O. P. A. case” [R. Vol. I, p. 257], which motion with consent of the Government Counsel was granted by the trial judge, and said jury was discharged without the consent of petitioner, Sam Ormont [R. Vol. I, p. 260]. Thereupon, petitioner, Sam Ormont, through his attorney, Daly B. Robnett, Esq., made a motion to dismiss the case, and to enter a plea of once in jeopardy on the ground that said jury after being duly impaneled and sworn had been so discharged without the consent of the petitioner [R. Vol. I, pp. 302-303], which motion was de- nied by the Court in the following language: “The Court: I was under the impression that the motion was made on behalf of both defendants. Even so, in considering the matter on the merits, I do not think the motion for a once in jeopardy plea is well taken. While the jury was sworn, there was not even a witness sworn, no opening statement to the jury, iin and there was nothing that the jury could decide it on, There was no evidence, no presentation of any kind, and I think there has to be more than the mere swear- ing of a jury to place a defendant once in jeopardy, The motion will be denied.” [R. Vol. I, p. 304.] Thereupon, a second jury was impaneled by the same Court and trial judge, and the defendants were jointly tried before such jury. 3. Immunity From Prosecution. The petitioner was subpoenaed before the Grand Jury of the Southern District, Central Division of California, and was questioned and testified concerning his income for 1944 as follows: “Q. During your entire operations there, from the time you went in to the time you went out, you never knew whether you were solvent or insolvent? A. | never did go out of business. A Grand Juror: Did you make money while at the Southern California Meat Company? The Witness: Yes, we showed a nice profit.” [R. Vol. I, p. 233.] On page 235 of the same record we quote: “A Grand Juror: How many times did you lose? The Witness: I don’t think I had an instance of once where I lost. A Grand Juror: In other words, you came out with a profit? The Witness: In my particular instance, I did the livestock purchasing myself; I had no outside buyers.” —— and during the same examination he was asked in great detail as to over-payments he had made for slaughtering cattle—payments which were in violation of the O. P. A. [see R. Vol. I, pp. 214-236], and not properly deductible from income. 4. Privileged Communications. During the trial the government produced a Certified Public Accountant by the name of William S. Malin as a witness, which accountant testified that he was employed by a Mr. Mirman who at the time was attorney for peti- tioner, Sam Ormont and defendant, Phillip Himmelfarb, to help said attorney in connection with the income taxes of petitioner, Ormont, and defendant, Phillip Himmelfarb [R. Vol. Ill, pp. 1094 and 1101]. The witness was al- lowed, over objection, that all communications to the wit- ness by either defendant were privileged to testify that he sent Exhibits 51 A, B, C, and D to Mr. Bircher (who was an agent of the Internal Revenue Department) [R. Vol. III, pp. 1108-1115, 1123], and over a like objec- tion, and further objection, there was no foundation laid (there was no evidence of Malin’s authority from Ormont or his attorney to deliver said exhibits to Mr. Bircher), said exhibits were admitted in evidence [R. Vol. ILI, pp. 1114 to 1119], and over a similar objection the witness was allowed to testify that he got the information con- tained in these exhibits, particularly Exhibit 51A from the taxpayer’s records [R. Vol. III, pp. 1119-1120]. willis 5. Violation of Fifth Amendment of Constitution, During the course of the trial in the presence of the jury, the Court intimated to the prosecution that it might use the processes of the United States Government and of that Court to compel the production of defendant’s books and records [R. Vol. II, pp. 599-600]. Thereafter, the prosecution caused a subpoena duces tecum to be is- sued by the Clerk of said Court directed to petitioner, commanding him to produce his books, and caused a Deputy United States Marshal to serve said subpoena on said defendant in open court and in plain view of the jury, and without instructing the jury to disregard the activity of the prosecutor the Court and Marshall which was thereafter assigned as prejudicial error [R. Vol. III, p. 889]. 6 Res Judicata, Evidence Pertaining to Counts 3 and 4 Submitted to Jury. The trial consumed approximately four weeks, during which time two witnesses, Eustice and Link, were the chief witnesses for the prosecution, and the former was the gov- ernment’s expert, and he testified for days on Counts 3 and 4, being for the years 1942 and 1943. At the close of the prosecutions case, defendant Ormont’s counsel moved the Court for a dismissal and acquittal of said de- fendant on each separate count of the indictment, and the Court granted such motion, and acquitted the defendant (petitioner) on Counts 2, 3, and 4. Immediately there- after, the counsel for petitioner made motions to strike the testimony and evidence of witnesses, Eustice and Link, pertaining to the years 1942 and 1943, on the ground that _—— . —l1— defendant had been acquitted for those two years, and it would be prejudicial error to leave such evidence before the jury. Said motions were denied [R. Vol. IV, p. 1374]. The prosecuting attorney used this evidence to obtain a verdict on Count 1. 7. Prejudicial Misconduct of Government Attorney. The prosecuting attorney was guilty of prejudicial mis- conduct and attempted to, and did excite the prejudices of the jury, and its resentment to defendant and defend- ant’s case in his argument to the jury by falsely accusing defendant’s counsel of “dragging” in extraneous matters which had nothing to do with the case and of wasting the time of the Court and jury in nothing but attempts to confuse [R. Vol. IV, pp. 1459-61], from which we quote as follows: “I ask you to consider whether those aren’t the extra pieces that have nothing to do with this case. Very confusing, no doubt about it, and if you don’t separate them you will never get to building the jig- saw puzzle as it should be built. You will never get the final picture. You will have so many pieces that have nothing to do with it that you may give up. [R. Vol. IV, p. 1459.] * + * * * * * * Yes, there is an attempt to confuse, there is an at- tempt to drag something else in, * * *” [R. Vol. IV, p. 1460.] (Italics swpplied. ) And further he said: “T submit to you, ladies and gentlemen, that in Mr. Eustice’s testimony with reference to the computa- tions of the amounts shown on the books and records = of the Acme Meat Company and the amounts shown upon the bank records that are undenied and undis. puted as of this amount, and that every single one of those other items dragged in have absolutely noth. ing to do with this because Mr. Eustice did not take them in as part of the unreported income. Now I am not going to take your time to point out and show you all these if questions and assuming questions—you remember them—this thing went on for so long that after a while it was perfectly clear as to what was going on and I think it is perfectly clear as to why it was going on. And that is another thing to consider, as I told you, because this case deals with concealment of money, failure to report money and an attempt to defeat and evade a tax.” [R. Vol, IV, p. 1461.] (Italics supplied.) And thereafter he said: “And if you just disregard all the irrelevancies, all of these red herrings—you know what a red herring is, it is something you draw in here to distract atten- tion—just forget all about these things that were dragged in and that have nothing to do with this case, and what does this case consist of?” [R. Vol. IV, p. 1481.] The evidence and cross-examination above referred to by the prosecuting attorney was very pertinent and demon- strated to the trial court that defendant was innocent of the charge of Counts 2, 3, and 4, and that the govern- ment’s expert was merely building up an arbitrary case based on hypothesis as was stated by the Court: “But, on Counts 2 and 3, the whole case is built upon by an arbitrary accounting method used by the Government agent.” [R. Vol. IV, p. 1370.] —13— And again on page 1372 the Court said: “T think it is not good law, on a criminal charge against a person, to let an agent, however credible he is, or sincere he might be, upon a hypothesis to build up a crime.” [R. Vol. IV, p. 1372. ] And again he falsely stated to the jury that the books were in evidence as follows: “The books speak for themselves. That is why they were admitted in evidence. If they weren't in evidence they wouldn’t be in this case.” [R. Vol. IV, p. 1559.] (Italics supplied. ) The books were not in evidence. Once more he falsely stated as follows: “But I ask you, what are those payments? Do you think they were payments in the business, which Mr. Ormont earned, as he reported, some $12,000, in the year 1944; he had such a fine clientele that they gave him gifts, approximately eight-twelfths of the sum he reported in 1945; about $220,000.00. Do you be- lieve he got $220,000.00 in free and voluntary gifts?” [R. Vol. IV, p. 1470.] There is absolutely no evidence to this effect anywhere in the record. Again the U. S. Attorney misstated the facts as follows: “And supposing he had the cash? Let’s assume he had the cash. What did he do with it? Well, in 1943 (italics supplied) (defendant Ormont was ac- quitted by the Court prior to the argument for the year 1943) out of the $12,000 he bought about $8000 worth of bonds. You remember that testimony, $8000 worth of bonds. That I assume is intended to show, or at least you are supposed to draw the inference iii [R. Vol. IV, p. 1476] from that, that the unreported income which Mr. Eustice claims this man accumy. lated during that year because he bought $8000 worth of bonds. Take the $8000 and then look at this Schedule No, 42 which shows how many bonds were actually bought during that year and see if you don’t find over $50. 000 worth of bonds bought that year—$50,000 worth of bonds—some such sum. Just look at them. They are enumerated on the Schedule and it is in evidence. What is $8000 off of that? It is $42,000. Well, let’s assume he had $8000 in cash. Does that change the story or the picture that was presented here by Mr. Eustice from these records? I submit to you that it doesn’t change it a single iota, not a single iota. Any explanation as to the other money that was used to buy the bonds? No, except some checks were shown here. Which of the bonds were bought with those checks? I can’t say. I don’t know.” [R. Vol. IV, pp. 1476, 1477.] (Italics supplied.) The foregoing statement was absolutely false and known by the prosecuting attorney to be false as he had already established by the government’s expert, Mr. Eustice, from whom he was entirely relying as to those bonds for the year 1943 the following: “A. He purchased United States Government bonds during 1943 of $51,475. The Court: How much? The Witness: $51,475. Of these bonds he purchased by checks drawn on his personal bank accounts $32,390.24, and by checks drawn on his business bank account, that is, Acme Meat Company, $5000. | —15— It was the total of those two items, that is, from known sources, $37,390.24. The difference between that and the actual bonds purchased was $14,084.76, which could not be traced to any known sources and was not explained by the taxpayer where the source of the funds came from.” [R. Vol. IT, pp. 539, 540.] The checks referred to by counsel and the $8000 fully covered the $14,000 bond item above. The prosecuting attorney falsely accused petitioner of falsifying records, although the Court had previously ad- monished him that such was not the fact. Yet he said to the jury as follows: “Mr. Link testified. * * * But the important thing is that he testified to, and the important thing that counts in this case because it deals with this at- tempt to defeat and evade, it deals with the state of mind of the defendant, it shows you his wilfulness, his deliberateness, his intent and his purpose, is the fact that Mr. Ormont told Mr. Link to change certain figures on those books, raise the figures. That is falsi- fying his records.” [R. Vol. IV, pp. 14601, 1462. | (Italics supplied. ) The testimony of Link regarding these changes on the books was that Mr. Ormont had given personal checks for additional amounts on purchase price of cattle and wanted them entered and at the time the evidence was in- troduced the following remark was made by Mr. Strong and the following admonition was made by the Court: “Mr. Strong: It proves that the records are false. The Court: Government counsel’s statement to the jury will be disregarded by the jury.” [R. Vol. II, p. 504.) —— oe and on cross-examination with regard to the entering on the books of these additional items the witness testifieg that Mr. Ormont had paid the same. We quote as fol. lows: “The Court: He actually paid the additional money ? The Witness: He paid the additional money with a check which was drawn. The Court: He paid the additional $3000? The Witness: Yes. The Court: So that the books were accurate when it said that he spent $3000 more?” [R. Vol. II, p, 492.] (Italics supplied.) The government counsel also was guilty of misconduct in the following particulars in that he repeatedly argued to the jury that the cross-examination of the witness, Eustice, was based entirely upon hypothetical questions; that there was nothing in the record to show that the facts based therein were true, but that all such things were purely supposition or assumptions and further stating that the witness, Eustice, did not use a single one of the checks in evidence in determining the unreported income which the government claimed in the indictment [R. Vol. IV, pp. 1457-1458], and further misled the jury in referring to all the checks and all the evidence in the cross-examina- tion was brought in merely to confuse the jury and had absolutely nothing to do with the case. To demonstrate the falsity of the argument, witness, Eusuce, identified a check of $186.00, and said he did take it into account as unexplained income |R. Vol. II, p. 678], and he also identified a great list of checks that he took into account as unexplained income [R. Vol. II, pp. 690-691], and an- at other check that was taken into unreported income [R. Vol. Il, p. 693]. Testifying concerning Exhibits S and T, S being a check for $1,332.27 to reimburse Mr. Or- mont for the checks embraced in Exhibit T, the witness said that he did not give credit for said sum as applying on the purchase of bonds, but instead charged that amount, and more as unreported income [R. Vol. II, pp. 779- 780]. Eustice admitted that if Exhibit S was used to purchase bonds, that would change his calculations as to the amount of unexplained income [R. Vol. II, p. 785). Although the District Attorney said there was no proof as to any of these items, the defendant testified positively that this $1,332.27 was used by him to purchase bonds [R. Vol. IV, p. 1303]. As to Exhibit Y, Eustice admit- ted that he did take it into account in determining the un- reported income [R. Vol. II, pp. 822-823]. Yet the Dis- trict Attorney told the jury that Eustice didn’t take any of these checks—not a single one of them—into account and that there was no evidence that any of them were used to purchase bonds. Yet the undisputed testimony of appellant that these checks in Exhibit Y were used to pur- chase bonds [R. Vol. IV, p. 1300]. As to Exhibit Z, Eustice admitted that he gave no credit for that check on the purchase of bonds, but charged the entire amount of the bonds to unexplained income and did use it in the cal- culation [R. Vol. II, pp. 793-794]. Mr. Ormont testified positively that this check was used to buy bonds [R. Vol. IV, pp. 1300-1321]. U. S. Counsel told the jury that all the government had to prove was a substantial amount of money as unreported income. “If we prove a substantial amount of money, it is just as good as proving the whole figure.” [R. Vol. IV, p. 1480.] —18— 8. Erroneous, Confusing and Conflicting Instructions The Court erred in the following charge to the jury: “In the event that you find that either defendant as to the particular count failed to report his true in. come in the amount substantially as claimed by the Government for the calendar year 1944, then as mat. ter of law the tax for the calendar year 1944 would have been substantially more than paid by such de fendant for the calendar year 1944.” [R. Vol. IV, p. 1578.] (Italics ours.) Government counsel argued to the jury that all that was necessary for the government to prove was a substantial amount of money. “Tt is just as good as proving the whole figure.” [R. Vol. IV, p. 1480.] He also argued that $11,000 was enough [R. Vol. IV, pp. 1551-1552]. The indictment charged $24,000 which is the amount which must be proved. The United States Court of Appeals admitted [R. Vol. V, p. 1684] that the instruction was erroneous, and should have used the word “alleged” rather than “claimed.” The Court also errone- ously charged “books and records” are required to be kept under the Internal Revenue regulations, whereas the regu- lation says “books or records,” and then went on and er- roneously said: “If ‘no books or records’ of the type required dy law are kept, a fiscal year return cannot be filed, but the sums ‘earned’ must be reported upon the calen- dar year return for the year in which they were ‘earned’.” [R. Vol. IV, p. 1583.] (Italics supplied.) Defendant assumed that government’s counsel had cor- rectly quoted the regulation, hence no exception was taken. adiiiien The Court also instructed : “A taxpayer who is on a cash basis need not re- port any income on his return that may be due him until he actually receives the said cash income.” (Ital- ics supplied.) [R. Vol. IV, p. 1584.] The Court erred in giving the following instruction : “The law under which these defendants were in- dicted in substance provides as is applicable to this case, that any person who wilfully attempts im any manner to evade or defeat any tax shall be guilty of acrime. The pertinent portion of the statute pro- vides as follows: “‘Any person required under this chapter to account for, and pay over any tax imposed by this chapter, who wilfully fails to truthfully account for any and pay over such tax, and any person who wilfully attempts in any manner to evade or defeat any tax imposed by this chap- ter or the payment thereof, shall in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof,’ shall be punished in the manner provided by law.” [R. Vol. IV, pp. 1574-1575.] (Italics supplied. ) The Court erred in giving the following instruction: “There has been placed in evidence the income tax return for the fiscal year May 1944 to April 1945, which was filed by the defendant on May 24, 1945, In this connection, it is part of your functions to de- cide whether the defendants actually had some in- come-producing enterprise, or enterprises, from which they derived the sum of roughly $71,000, which they reported on the fiscal year basis in that return. In this connection, you must determine what enterprise, if any, the defendants engaged in besides the opera- tion known as the Acme Meat Company, if you de- —20— cide they were engaged together in the Acme Meat Company, and whether the money was received as in- come with reference to some other transaction not part of the Acme Meat Company sales and operations, “Ultimately you are to decide in this connection, among other things, whether the $71,000 odd dollars reported on the fiscal year return was or was not part of the income derived from the sales made as part of the operations of the Acme Meat Company, and whether that money, or a substantial part of that money, was in fact received by each of of the defend- ants as part of his income from the Acme Meat Com- pany operations; and if not, then whether or not books and records were kept of such other eréerprise as required by the statute. “The statute in that connection, Section 41 of the Internal Revenue Code, reads as follows: “ i at likewise in the case of Malone v. U. S. (7th), 94 — To leave this voluminous evidence before the jury could do nothing but confuse and warp their judgment as was said in the case of People v. Albertson, 23 Cal. 2d at 580, 581: “Here, the fact that the circumstantial evidence of the prior merely suspicious occurrences was ad- duced in great quantity so that it comprises a large part of the voluminous record, cannot serve as a substitute for ‘substantiality’ where none exists, This erroneously admitted proof shows, if anything, that it must by very reason of its voluminousness have tended to confuse the jurors and warp their judgment, Circumstantial proof of a crime charged cannot be intermingled with circumstantial proof of suspicious prior occurrences in such manner that it reacts as a psychological factor with the result that the proof of the crime charged is used to bolster up the theory or foster suspicion in the mind that the defendant must have committed the prior act, and the conclusion that he must have committed the prior act is then used in turn to strengthen the theory and induce the conclusion that he must also have committed the crime charged. This is but a vicious circle.” (Italics supplied.) As to Mr. Link’s testimony, more was addressed to those two years than to 1944 and the Court, as to this witness, said: ‘‘* * * T may be pardoned for saying this, but if I had to weigh Mr. Link’s testimony I wouldn’t give it much credence, * * *” (R. Vol. II, p. 1260). With this vast amount of testimony and exhibits left in before the jury, which at best was only confusing and which certainly had no place therein, after the acquittal on those two counts, and Government’s counsel’s argument — | _ referring to the great mass of evidence was sufficient in itself to prejudice the jury against the defendant, not- withstanding the acquittal by the Court on those counts and on that evidence, but by leaving the evidence before the jury and then instructing them as he did that they might consider it on the matter of intent, there can be no question bu what that fact alone influenced the jury and caused a miscarriage of justice herein. The holding of the above cited California case is in ccnsonance with the rule laid down in the case of Fish v. U. S., 215 Fed. 545, 549, 132 C. C. A. 56, L. R. A. 1915a 809. The holding of the United States Court of Appeals in extending the rule just one step farther overlooks the general rule of the inadmissibility of the similar offenses in cases of like crimes is admissible in crimes involving intent of the defendant, only as indispensable to the proof of the of- fense for the purpose of showing that the act or acts were not innocent or mistaken, but constitute an intentional violation of the law; and in accordance with the authori- ties above cited in cases falling under such exceptions to the rule it is essential to the admissibility of evidence of such other offenses that the proof of the latter offense be plain, clear, and conclusive. Evidence of a vague and uncertain character regarding such an alleged offense is never admissible. The United States Court of Appeals overlooks entirely the reason for the rule and fails to realize that the issue as to whether or not the defendant was guilty of the offenses and acts complained of in 1942 and 1943 were based upon and became res judicata by the court’s acquittal of the defendant, Ormont. There is no argument with the cases cited by the Court, except that they are inapplicable to the situation at bar for in all the EN cases cited the defendant went to trial on all the counts, We, therefore, have a situation of the United States Court of Appeals stating in effect that the trial court has the discretion of admitting into evidence any facts that might fall far short of a completed offense, even though the trial court stated that he thought he was help- ing the defendant by leaving the mass of evidence in, for the Court said: “T thought that it benefited the defendants, leay- ing it in, as much as it did the government, by virtue of your cross-examination of the defendant Eustice.” [R. Vol. IV, p. 1610.] The defendant at all times questioned the benefit and still does. The U. S. Court of Appeals in attempting to dis- tinguish the admissibility of the similar offenses on the grounds that they were merely admitted “to show his in- tent to act wilfully, his intention, and his state of mind.” [R. Vol. V, p. 1678.] The rule laid down is in violation of all the holdings pertaining to the general principle of res judicata. Corpus Juris, Volume 34, Section 1154, pages 742 and 743, lays down the rule and the ground of the doctrine after citing numerous authorities for its holdings. The doctrine of res judicata, first definitely formulated in the Duchess of Kingston’s case, embodies two main rules which may be stated as follows: (1) The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. (2) Any right, fact, or matter in issue, —7— —55-— and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject matter of the two suits is the same or not. The rules afford a logical and convenient method of dividing the numerous cases falling within the principle of res judicata. (In re Food Conservation Act, 254 Fed. 893.) The potency and cogency of the rule above laid down is all the more apparent when it is realized that the court itself adjudicated the very facts in favor of the defendant. The doctrine of res judicata is applicable in criminal cases, U. S. v. Oppenheimer, 242 U. S. 85, 61 L. Ed. 161, 37 Sup. Ct. Rep. 68, where Justice Holmes said as fol- lows: “In this respect the criminal law is in unison with that which prevails in civil proceedings.” This Court in closing stated: “The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice (Jeter v. Hewitt, 22 How. 352, 364, 16 L. ed. 345, 348), in order, when a man once has been acquitted on the merits, to enable the government to prosecute him a second time.” The Court having acquitted the defendant on Counts 3 and 4 of necessity adjudicated the fact that the of- otiities fenses complained of in the years 1942 and 1943 were not committed and that the acts therein complained of were not “offenses.” To, therefore, hold that the evidence falling far short of the necessary elements required to convict the defendant can be used to secure the conviction for 1944 is, indeed, a violation of the defendant’s consti- tutional rights of being twice placed in jeopardy and in the language of the Oppenheimer case: “is to do away with what in the civil law is a funda- mental principle of justice.” 6. Misconduct of Counsel. We have set forth in our petition quotations from the government counsel’s argument, and have shown therein the falsity of such statements as were made, and we re- spectfully submit that a reading of those quotations is suf- ficient to show that the conduct of the prosecuting attor- ney was deliberate and intended to prejudice the jury against the defendant, and must have had that exact effect and deprived defendant of a fair and impartial trial to which he was entitled under the constitution. Keeping in mind the fact as the Court of Appeals stated on Record volume V, page 1680: “We agree that the fact that the prosecutor holds a position of importance lends weight to his utterances and gives serious influence on the jury.” See also: Latham v. United Statics, 226 Fed. 420. wall It has been held that a single misstep on the part of the prosecutor may be so destructive of the right of a de- fendant to a fair trial that reversal must follow. Pharr v. United States, 48 F. 2d 767 (C. C. A. 6); Pierce v. United States, 86 F. 2d 949. It has also been held that it is the duty of the Court of its own motion to see to it that the defendant has a fair trial and that the prosecutor does not misstate the facts. Pierce v. United States, 86 F. 2d 949; Berger v. United States, 295 U. S. 78, 89, 55 S. Ct. 629, 632. See also: United States v. Perlstein, 120 F. 2d 276; Weathers v. United States, 117 F. 2d 585; New York Central R. R. Co. v. Johnson, 279 U. S. 310, 49 S. Ct. 300, 73 L. Ed. 706. It was also held that even though some transgressions may be slight so that if they had been promptly corrected, no prejudice would be suffered, but where they have not been corrected, such a course of improper conduct com- pes reversal. Pierce v. United States, 86 F. 2d 949; Volkmor v. United States, 13 F. 2d 594 (C. C. A. 6); Frants v. United States, 62 F. 2d 737 (C. C. A. 6). And see also: Berger v. United States, 295 U. S. 78, 89, 55 S. Ct. 629, 632, 79 L. Ed. 1314. _ In the case at bar as was stated in the Pierce case, % F. 2d 949, as follows: “was neither slight nor confined to a single instance, but so pronounced and persistent that the cumulative effect upon the jury cannot be disregarded as incon- sequential.” The prosecuting attorney in his argument to the jury falsely accused the defendant of “falsifying his books,” although he had been rebuked by the Court during the trial for making a similar statement {R. Vol. II, p. 504] and as we have heretofore shown, the books were made cor- rect instead of falsified. Such an argument in effect charged the defendant with a crime of falsifying his books and this argument taken in connection with the erroneous instruction given by the Court to the effect that if they found that the defendant had “in any man- ner to evade” [R. Vol. IV, p. 1575] could have brought about the verdict in this case. This misconduct alone was sufficient to deprive defendant of his fair trial, but in ad- dition it was the further misstatements by the government attorney to the effect that the books were in evidence—that $50,000 worth of bonds had been purchased, and no ex- planation of where the purchase money came from except $8,000 cash (these bonds were all bought in 1943, and this is the evidence we moved to strike out after the ac- quittal of the defendant on the count based on 1943)— that the false statement that none of the checks intro- duced by defendant were taken into account by the gov- ernment expert as unreported income. Certainly, the accumulative effect of such a course of improper conduct deprived the defendant of a fair and impartial trial on the merits and should compel a reversal. —_ —59— 7. Erroneous, Confusing, Conflicting Instructions and Failure to Instruct. It was the duty of the Court on its own motion to fully and fairly instruct the jury on all the law relating to the facts of the case. Kinard v. U. S., 68 App. D. C. 250, 96 F. 2d 522, 523; People v. Putman, 20 Cal. 2d 885 at 890, 891, 129 P. 2d 367; People v. Best, 13 Cal. App. 2d 606, 57 P. 2d 168. The defendant has a right to rely upon the correctness of instructions presented by prosecuting attorney. People y. Best, supra. In this case, defendant had a right to as- sume that the U. 5. attorney had correctly quoted the In- ternal Revenue Regulations concerning books or records. The Court should have instructed the jury on its own motion of the lesser offenses contained within the indict- ment which would be the offense denounced by Title 26, U. S. C., Section 3616, Subdivision A, a misdemeanor and which section reads as follows: “Whenever any person * * * (a) False returns. Delivers or discloses to the collector or deputy and false or fraudulent list, re- turn, account, or statement with intent to defeat or evade the valuation, enumeration, or assessment in- tended to be made; or,” (Italics supplied. ) —6Q0— And likewise should have instructed the jury under Syh division A of Section 145, under Title 26 U. S. C. Nicola v. U. S. (3rd), 72 F. 2d 780; Kinard v. U. S., supra; People v. Putman, supra, and 16 Corpus Juris Secundum Section 2451, p. 1023, It was an incorrect statement of the law and a preju- dicial instruction that the Court gave wherein it stated that income “earned”’ in a given calendar year must be reported for that calendar year. This was highly prejudicial in face of the fact that the prosecuting attorney argued to the jury as follows: “He was selling meat. He marked on the invoices the price for the meat. In addition to that he gets side money, extra payments, additional money. He would like to call them gifts. He would like to call them anything else. “But I ask you, what are those payments? Do you think they were payments in the business, which Mr. Ormont earned, as he reported, some $12,000, in the year 1944; he had such a fine clientele that they gave him gifts, approximately eight-twelfths of the sum he reported in 1945; about $220,000.00. Do you be- lieve he got $220,000.00 in free and voluntary gifts?” [R. Vol. IV, p. 1470.] Throughout his argument he was contending to the jury that the joint venture return which extended from the Ist day of May, 1944 to the 30th day of April, 1945, thereby having eight months in 1944 that the jury could take into account in their calculation that Mr. Ormont had “earned” eight-twelfths of such amount without any evidence that ae EE =— he had “received” any such sum and further the foregoing statement of $220,000.00 finds absolutely no support in the record. Therefore, the foregoing erroneous instruction that they could consider the amount Mr. Ormont had “earned” and find him guilty because he had not reported such earning in the year in which it was earned, regardless of when it was received was in conflict with the law and with the subsequent instruction given by the Court to the effect that a taxpayer on a cash basis need report income only for the year in which he “received” the income. y The Court of Appeals on page 1685 on Record volume V regarding this instruction on earned income said: “This latter statement is corrected by subsequently saying in the instruction that he need not report any income if filing on a cash basis until cash is actually received.” This was so stated in a subsequent disconnected instruc- tion, but in any event the Court cites no authorities in sup- port of its statement, and this for the obvious reason that the authorities are to the contrary as held by the authori- ties in general and as set forth in 16 Corpus Juris 1054, where it is stated: “Where an erroneous instruction consists of a pal- pable misstatement of the law, it is not cured by a conflicting or contradictory one which correctly states the law on the point involved, unless the erroneous instruction is expressly withdrawn, for the jury, as- suming, as is their duty, that the instructions are all = correct, may as readily follow the incorrect as the correct.” (Italics supplied.) Mills v. United States, 164 U. S. 644, 17 S. 210, 41 L. Ed. 584; Glover v. U. S., 147 Fed. 426, 77 C. C. A. 450; People v. Grahm, 176 App. Div. 38, 162 N. Y. S. 334; People v. Maughs, 149 Cal. 253; Funderburk v. State, 145 Ala. 661, 39 So. 672; Lane v. State, 44 Fla. 105, 32 So. 896; Beach v. State, 138 Ga. 265, 75 S. E. 139; Barnes v. State, 61 Tex. Cr. 37, 133 S. W. 887; Com. v. Molten, 230 Pa. 399, 79 Atl. 638; State v. Helton, 234 Mo. 559, 137 S. W. 987; Hoge v. People, 117 Ill. 35, 48, 6 N. E. 796. In the case of Hoge v. People, 117 Ill. 35, 48, 6 N. E. 796, the Court said: “Where one instruction says that the law is one thing with regard to a particular matter or state of circumstances, and another instruction says that the law is another and materially different thing with re- gard to precisely the same matter or state of circum- stances, the instructions are repugnant, and no repeti- tion of the correct instruction can cure the error of those that are incorrect.” The instruction of the Court which we have heretofore quoted in the petition and found on page 1575, Vol. IV of the Record to the effect that: “any person who wilfully attempts in any manner to evade or defeat * * *” _—_ = ae And then reads the full section of the Code using the same language was highly prejudicial in this case for the rea- son that the indictment charged the defendant with the specific manner that it was claimed that he had attempted to evade, namely, by filing a false and fraudulent income and victory tax return, and withholding knowledge from the Internal Revenue Department, and having so charged the defendant, the allegations became a material part of the indictment and the burden was upon the prosecution to prove one or both of such means and manner and in order to warrant a verdict. See: Kutler v. United States, 79 F. 2d 440; United States v. Howard, 26 Fed. Case No. 15403, 3 Sumn. 12, 15; People v. Deysher, 2 Cal. 2d 141, 40 P. 2d 259; People v. Handley, 100 Cal. 370, 34 Pac. 853; People v. Lapique, 10 Cal. App. 669, 103 Pac. 164; People v. Strassman, 112 Cal. 683, 45 Pac. 3; Hightower v. State, 39 Ga. Appeals 674, 148 S. E. 300; Naftager v. United States, 200 Fed. 494. See: 31 Corpus Juris 837, Section 445. Also the giving of an instruction which referred to an- other section of the code [R. Vol. IV, p. 1583] without in- structing the jury as to the contents of said section was highly prejudicial. See: Butler v. Gill, 34 Okla. 814, 127 Pac. 439, 440. a 8. Closing. We believe that it is fitting that the writ be here granted because this case presents to the Court many issues of general and national importance. It deals with the most fundamental constitutional rights, privileges, and immuni- ties, the preservation of which it has repeatedly been held, is the highest function of the jundiciary. It is important and its implications reach far beyond the confines of this case. There are certain questions that must be answered here. Shall a defendant be deprived of a specific jury that has been duly sworn and accepted in which it is admitted that a defendant has a property right? Shall a defendant be deprived of a common law right of consultation with his attorney because the attorney requires expert assistance in order for him to give sound legal advice to his client? Shall a defendant be deprived of his right of immunity after the government extracts its “pound of flesh” or quid pro quod? Shall we no longer protect the defendant from his right not to be a witness against himself? Shall we say that any number of errors are slight and not preju- dicial no matter how erroneous, merely because the judi- ciary is attempting to confirm a conviction, irrespective of the defendant’s right to a fair trial? Shall we condone a practice of a trial court and a Court of Appeals although admittedly saying the prosecuting attorney committed error? The conduct, if approved by the opinion of the Court of Appeals if followed gives rise to establishment of a new concept of legal jurisprudence, namely, that the bur- den of proof is upon the defendant, and it is necessary — for the defendant to prove himself innocent rather than for the state to prove him guilty. It is a reincarnation and legalization of those practices which originally gave rise to the demand for these constitutional safeguards. We have fought a war to safeguard the principal of democracy _to make certain that our way of life shall continue— and that the basic rights of individuals shall be main- tained. Now under the guise of protecting the revenue of the country we are seeing the steady and deadly denial of rights of individuals. We have witnessed in the opin- ‘on of the United States Court of Appeals, the frittering away of constitutional rights of a defendant. We respectfully submit that this Honorable Court should issue the writ prayed for. WILLIAM JENNINGS BRYAN, JR., Day B. RosBNettT and BENJAMIN KospDOoN, Counsel for Petitioner. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2356%3A1. Public record. Not legal advice.