Before MAJOR, HASTINGS and PARKINSON, Circuit Judges.
PARKINSON, Circuit Judge.
Sanders Scott, Edward Copeland and Julian A. Black were tried to a jury on a thirteen count indictment.
Counts I, II and III charged all three defendants with the preparation and presentation of a false and fraudulent partnership return for 1949, 1950 and 1951 in violation of Title 26 U.S.C.A. § 3793 (b) (1). The remaining counts charged each defendant with evading his individual income taxes for the same period and Scott for the additional year 1948 in violation of Title 26 U.S.C.A. § 145(b).
The defendants moved for an aquittal at the close of the Government's case. The District Court granted the motion as to defendant Black and denied as to defendants Scott and Copeland.
The jury found defendant Scott not guilty as to the 1948 charge but found both defendants Scott and Copeland guilty on all other counts in which they were charged. The District Court entered judgment on the verdict and pronounced sentence. Motions of defendants for a new trial were denied. This appeal followed.
Discussion of all the errors relied upon for reversal, as incorporated in the statement of the contested issues upon which the parties are in agreement, would serve no purpose other than to unnecessarily extend this opinion. However, two of the seven contested issues are:
"1. (b) Whether the court erred in denying defendants' motions for a new trial.
"2. Whether the court erred:
"(c) In denying the motion for a Mistrial."
The fourth of over twenty witnesses called by the Government was Raymond W. Garrigan, an Internal Revenue Agent with the United States Treasury Department. He was an important witness for the Government and his direct testimony was very extensive. However, after he had detailed a conversation of May 13th with the defendant Black covering the matter in issue the United States Attorney, with full knowledge of what he would say, asked him:
"Mr. Garrigan, I believe that we have concluded the discussion on May 13th concerning those particular books. What else if anything was said on that occasion?"
Garrigan then gave the following answer, as the Prosecutor admittedly knew he would:
"Well, I asked Mr. Black if he paid any protection for the wheel, paid ...