Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; William H. Holly, Judge.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
This is an appeal from a judgment of conviction under a two count indictment which charged the defendant, in appropriate language, for the calendar years 1929 and 1930, with a violation of section 146(b) of the Revenue Act of 1928, Title 26 U.S.C.A. § 145(b) and note. The only substantial complaint made with reference to defendant's returns for the years in question was his failure to include the sum of $266,480 for the year 1929, and the sum of $62,050 for the year 1930, which it is charged constituted income of the defendant for those years, respectively.
The essential errors assigned are: First, denial of defendant's plea in abatement attacking the legality of the indictment because returned by an illegal grand jury; second, admission of evidence that defendant evaded his income tax for the years 1926, 1927, and 1928; third, action of the court in striking testimony concerning a statement made by the defendant to a witness whom he had consulted in 1920 concerning the subject matter of the charge; fourth, refusal of the trial court to direct a verdict; fifth, improper argument on the part of counsel for the government; and, sixth, erroneous instructions to the jury.
We shall first consider the question raised by defendant's plea in abatement. The indictment was returned at the October term, 1933, by a grand jury impaneled by Judge Barnes at the July term, and continued by him to succeeding terms, including the one which returned the indictment. Judge Barnes, not being the senior judge of the district, the troublesome question presented is whether he had the authority so to do. The solution of the same involves a construction of section 284 of the Judicial Code, as amended February 25, 1931, 46 Stat. 1417, U.S.C.A. title 28, § 421.
For the purpose of convenience and to make it less difficult to compare this section with previous acts, we have divided the same into numbered paragraphs. So arranged, the act is as follows:
1. "No grand jury shall be summoned to attend any district court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor.
2. "If the United States attorney for any district which has a city or borough containing at least three hundred thousand inhabitants shall certify in writing to a district judge [or the senior district judge] of the district that the exigencies of the public service require it, the judge may, in his discretion, also order a venire to issue for a second grand jury:
3. "Provided, however, That if the United States attorney for the southern district of New York shall certify in writing to the [district judge or the] senior district judge of said district that the exigencies of the public service require it, said judge may, in his discretion, also order a venire to issue for a third grand jury.
4. "And said court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so.
5. "And the district judge or the senior district judge, as the case may be, may, upon request of the district attorney or of the grand jury or on his own motion, by order authorize any grand jury to continue to sit during the term succeeding the term at which such request is made, solely to finish investigation begun but not finished by such grand jury: 6. "Provided, however, that no grand jury shall be permitted to sit in all during more than three terms."
By this amended act there was added paragraphs 3, 5, and 6; otherwise the act is identically the same as the act which is supplanted, and which was in force from 1911 as section 284 of the Judicial Code. The act of 1911, for the first time, contains the identical provision above referred to as paragraph 2, 28 U.S.C.A. § 421. Prior to that time and since 1878, the act contained substantially the provisions now found in paragraphs 1 and 4. In other words, in 1911, the act was amended by adding paragraph 2, and, in 1931, by adding paragraphs 3, 5, and 6.
It is the contention of the defendant that the language contained in paragraph 5 conclusively demonstrates that in districts where there is more than one judge, only the senior judge is empowered with authority to continue a grand jury so that it may legally function during a succeeding term, while the government contends that any District Judge may so do. Judge Wilkerson of the District Court, who tried the issue ...