1. In criminal trials in the federal courts, the power of the
judge to express an opinion as to the guilt of the defendant,
though it
Page 290 U. S. 390
exists, should be exercised cautiously, and only in exceptional
cases. P.
290 U. S.
.394.
2. Under the circumstances of this case, it was reversible error
for the judge to state in his charge to the jury his opinion that
the defendant was guilty beyond a reasonable doubt. Distinguishing
Horning v. District of Columbia, 254 U.
S. 135. P.
290 U. S.
394.
3. In determining the meaning of the word "willfully" as used in
a penal statute, the context in which it is used may be resorted to
as an aid. P.
290 U. S.
395.
4. The provision of the Revenue Acts of 1926, § 1114(a), and
1928, § 146(a), punishing any person "who willfully fails" to
supply information to the Bureau of Internal Revenue and its
employees does not apply to one whose refusal to give such
information was based upon his
bona fide, though mistaken,
understanding of his constitutional protection against
self-incrimination. P.
290 U. S.
396.
5. In a prosecution under the Revenue Acts of 1926 and 1928 for
"willfully" failing to supply information, it appeared that the
defendant had refused to answer questions on the ground that he
might be subjected to prosecution under state laws. This was prior
to
United States v. Murdock, 284 U.
S. 141. The defendant requested the following
instruction:
"If you believe that the reasons stated by the defendant in his
refusal to answer questions were given in good faith and based upon
his actual belief, you should consider that in determining whether
or not his refusal to answer the questions was willful."
Held, the court's refusal to give the requested
instruction was error. P.
290 U. S.
396.
62 F.2d 926 affirmed.
Certiorari to review a judgment reversing a judgment and
sentence of the district court in a criminal prosecution under the
Revenue Acts.
Page 290 U. S. 391
MR. JUSTICE ROBERTS delivered the opinion of the Court.
This case is here for the second time.
The respondent was indicted for refusal to give testimony and
supply information as to deductions claimed in his 1927 and 1928
income tax returns for moneys paid to others. By a special plea, he
averred that he ought not to be prosecuted under the indictment
because, if he had answered the questions put to him, he would have
given information tending to incriminate him, in contravention of
the Fifth Amendment. The United States demurred on the grounds that
the plea failed to show that the information demanded would have
incriminated or subjected the defendant to prosecution under
federal law, and that the defendant waived his privilege under the
Fifth Amendment. The demurrer was overruled. Upon appeal, this
Court reversed the judgment for the reason that, at the hearing
before the federal revenue agent, the defendant had not invoked the
protection of the Fifth Amendment against possible prosecution
under federal legislation, but solely under state laws. The cause
was remanded to the District Court for further proceedings.
United States v. Murdock, 284 U.
S. 141.
The petitioner pleaded not guilty, was put upon trial, and
convicted. He appealed to the Circuit Court of Appeals, which
reversed the judgment, [
Footnote
1] and the case was brought here by writ of certiorari.
[
Footnote 2] The question
presented is whether the trial court correctly instructed the jury
as to what constitutes a violation of the sections of the Revenue
Acts of 1926 and 1928 upon which the indictment was based.
Section 256 of the Revenue Act of 1926 and § 148 of the Revenue
Act of 1928, in identical words, require all
Page 290 U. S. 392
persons making payment to another to make a true and accurate
return to the Commissioner of Internal Revenue, under such
regulations as he shall prescribe, setting forth the amount paid
and the name and address of the recipient. [
Footnote 3] Section 1104 of the Revenue Act of 1926 and
§ 618 of the Revenue Act of 1928 authorize the Commissioner, for
the purpose of ascertaining the correctness of any return or of
making a return where none has been made, through officers or
employees of the Bureau of Internal Revenue, to examine books,
papers, records, and memoranda bearing upon the matters required to
be included in the return, and to compel the attendance of the
taxpayer or anyone having knowledge of the premises, and to take
testimony with reference to the matter directed by law to be
included in the return, with power to administer oaths to the
persons to be interrogated. [
Footnote 4]
Section 1114(a) of the Revenue Act of 1926 declares: [
Footnote 5]
"Any person required under this title to pay any tax, or
required by law or regulations made under authority thereof to make
a return, keep any records, or supply any information for the
purposes of the computation, assessment, or collection of any tax
imposed by this title, who
willfully fails to pay such
tax, make such return, keep such records, or supply such
information at the time or times required by law or regulations
shall, in addition to other penalties provided by law, be guilty of
a misdemeanor and, upon conviction thereof, be fined not more than
$10,000, or imprisoned for not more than one year, or both,
together with the costs of prosecution."
Section 146(a) of the Revenue Act of 1928 is identical with the
quoted section of the 1926 Act. [
Footnote 6] The indictment
Page 290 U. S. 393
in two counts charged violation of the provisions of the two
sections last mentioned.
Upon the trial, the government proved the respondent had been
duly summoned to appear before a revenue agent for examination;
questions had been put to him; he refused to answer, stating he
feared self-incrimination, and, upon further inquiry, disclosed
that his fear was based upon possible prosecutions under state
statutes. The government also offered evidence that, on a prior
occasion at a meeting with certain revenue agents, the respondent
had refused to disclose the name of the payee of the sums deducted
by him in his returns for 1927 and 1928. To this, counsel for the
respondent objected on the ground that it was irrelevant to the
issue, which was the respondent's refusal to answer when summoned,
sworn, and interrogated. The prosecuting attorney replied that the
willfulness of the respondent's refusal to answer was in issue, and
that the proposed evidence bore upon that matter. The court
overruled the objection and admitted the testimony. The respondent
offered no evidence. In the course of his charge, the trial judge
said:
"So far as the facts are concerned in this case, Gentlemen of
the Jury, I want to instruct you that whatever the Court may say as
to the facts is only the Court's view. You are at liberty to
entirely disregard it. The Court feels from the evidence in this
case that the Government has sustained the burden cast upon it by
the law and has proved that this defendant is guilty in manner and
form as charged beyond a reasonable doubt."
The respondent's request for an instruction in the following
words was refused:
"If you believe that the reasons stated by the defendant in his
refusal to answer questions were given in good faith and based upon
his actual belief, you should consider that in determining whether
or not his refusal to answer the questions was willful. "
Page 290 U. S. 394
In the circumstances, we think the trial judge erred in stating
the opinion that the respondent was guilty beyond a reasonable
doubt. A federal judge may analyze the evidence, comment upon it,
and express his views with regard to the testimony of witnesses. He
may advise the jury in respect of the facts, but the decision of
issues of fact must be fairly left to the jury.
Patton v.
United States, 281 U. S. 276,
281 U. S. 288;
Quercia v. United States, 289 U.
S. 466. Although the power of the judge to express an
opinion as to the guilt of the defendant exists, it should be
exercised cautiously and only in exceptional cases. Such an
expression of opinion was held not to warrant a reversal where,
upon the undisputed and admitted facts, the defendant's voluntary
conduct amounted to the commission of the crime defined by the
statute.
Horning v. District of Columbia, 254 U.
S. 135. The present, however, is not such a case, unless
the word "willfully," used in the sections upon which the
indictment was founded means no more than voluntarily.
The word often denotes an act which is intentional, or knowing,
or voluntary, as distinguished from accidental. But, when used in a
criminal statute, it generally means an act done with a bad purpose
(
Felton v. United States, 96 U. S.
699;
Potter v. United States, 155 U.
S. 438;
Spurr v. United States, 174 U.
S. 728); without justifiable excuse (
Felton v.
United States, supra; Williams v. People, 26 Colo. 272, 57 P.
701;
People v. Jewell, 138 Mich. 620, 101 N.W. 835;
St. Louis I.M. & S. Ry. Co. v. Batesville & W. Tel.
Co., 80 Ark. 499, 97 S.W. 660;
Clay v. State, 52
Tex.Cr.R. 555, 107 S.W. 1129); stubbornly, obstinately, perversely
(
Wales v. Miner, 89 Ind. 118, 127;
Lynch v.
Commonwealth, 131 Va. 762, 109 S.E. 427;
Claus v. Chicago
Gt. W. Ry. Co., 136 Iowa 7, 111 N.W. 15;
State v.
Harwell, 129 N.C. 550, 40 S.E. 48). The word is also employed
to characterize a thing done without ground for believing it is
lawful (
Roby v. Newton, 121 Ga. 679, 49
Page 290 U. S. 395
S.E. 694, 68 L.R.A. 601), or conduct marked by careless
disregard whether or not one has the right so to act (
United
States v. Philadelphia & R. Ry. Co., 223 F. 207, 210;
State v. Savre, 129 Iowa, 122, 105 N.W. 387;
State v.
Morgan, 136 N.C. 628, 48 S.E. 670).
This Court has held that, where directions as to the method of
conducting a business are embodied in a revenue act to prevent loss
of taxes, and the act declares a willful failure to observe the
directions a penal offense, an evil motive is a constituent element
of the crime. In
Felton v. United States, supra, the court
considered a statute which required distillers to maintain certain
apparatus to prevent the abstraction of spirits during the process
of distillation, and declared that, if any distiller should
"knowingly and willfully" omit, neglect, or refuse to do anything
required by law in conducting his business, he should be liable to
a penalty. It appeared that, in defendant's plant, defective
appliances caused an overflow and wastage of low wines, and to save
these it became necessary, in disregard of the method prescribed by
the act, to catch the spirits and pour them into vats. This was
done despite instructions to the contrary by the government
officers who were consulted as to what procedure should be
followed. It was admitted that the action was innocent in purpose,
saved loss of the product to the owner and taxes to the United
States. In an action for the statutory penalty, the conduct of the
distiller was held not to be willful within the meaning of the
law.
Aid in arriving at the meaning of the word "willfully" may be
afforded by the context in which it is used (
United States v.
Sioux City Stock Yards Co., 162 F. 556, 562), and we think in
the present instance the other omissions which the statute
denounces in the same sentence only if willful, aid in ascertaining
the meaning as respects the offense here charged. The revenue acts
command the citizen, where required by law or regulations, to pay
the
Page 290 U. S. 396
tax, to make a return, to keep records, and to supply
information for computation, assessment, or collection of the tax.
He whose conduct is defined as criminal is one who "willfully"
fails to pay the tax, to make a return, to keep the required
records, or to supply the needed information. Congress did not
intend that a person, by reason of a
bona fide
misunderstanding as to his liability for the tax, as to his duty to
make a return, or as to the adequacy of the records he maintained,
should become a criminal by his mere failure to measure up to the
prescribed standard of conduct. And the requirement that the
omission in these instances must be willful to be criminal is
persuasive that the same element is essential to the offense of
failing to supply information.
It follows that the respondent was entitled to the charge he
requested with respect to his good faith and actual belief. Not
until this Court pronounced judgment in
United States v.
Murdock, 284 U. S. 141, had
it been definitely settled that one under examination in a federal
tribunal could not refuse to answer on account of probable
incrimination under state law. The question was involved, but not
decided, in
Ballmann v. Fagin, 200 U.
S. 186,
200 U. S. 195,
and specifically reserved in
Vajtauer v. Comm'r of
Immigration, 273 U. S. 103,
273 U. S. 113. The
trial court could not therefore properly tell the jury the
defendant's assertion of the privilege was so unreasonable and ill
founded as to exhibit bad faith and establish willful wrongdoing.
This was the effect of the instructions given. We think the Circuit
Court of Appeals correctly upheld the respondent's right to have
the question of absence of evil motive submitted to the jury, and
we are of opinion that the requested instruction was apt for the
purpose.
The government relies on
Sinclair v. United States,
279 U. S. 263.
That case, however, construed an altogether
Page 290 U. S. 397
different statutory provision. Sinclair was indicted for refusal
to answer a question pertinent to a matter under investigation by a
committee of the Senate. The act upon which the indictment was
based declared:
"Every person who having been summoned as a witness by the
authority of either House of Congress, to give testimony or to
produce papers upon any matter under inquiry before either House,
or any committee of either House of Congress,
willfully makes
default, or who, having appeared, refuses to answer any question
pertinent to the question under inquiry, shall be deemed
guilty of a misdemeanor. . . . [
Footnote 7]"
Two distinct offenses are described in the disjunctive, and in
only one of them is willfulness an element. Sinclair, having been
summoned, attended the hearing. He was therefore guilty of no
willful default in obeying a summons. He refused to answer certain
questions not because his answers might incriminate him, for he
asserted they would not, but on the ground the questions were not
pertinent or relevant to the matters then under inquiry. The
applicable statute did not make a bad purpose or evil intent an
element of the misdemeanor of refusing to answer, but conditioned
guilt or innocence solely upon the relevancy of the question
propounded. Sinclair was either right or wrong in his refusal to
answer, and, if wrong, he took the risk of becoming liable to the
prescribed penalty. Here, we are concerned with a statute which
denounces a willful failure to do various things thought to be
requisite to a proper administration of the income tax law, and the
government in the trial below, we think correctly, assumed that it
carried the burden of showing more than a mere voluntary failure to
supply information, with intent, in good faith, to exercise a
privilege granted the witness by the Constitution. The respondent's
refusal to answer was intentional and without legal justification,
but
Page 290 U. S. 398
the jury might nevertheless find that it was not prompted by bad
faith or evil intent, which the statute makes an element of the
offense.
The judgment is
Affirmed.
MR. JUSTICE STONE and MR. JUSTICE CARDOZO are of opinion that
the judgment should be reversed.
[
Footnote 1]
62 F.2d 926.
[
Footnote 2]
290 U.S. 606.
[
Footnote 3]
U.S.C. Tit. 26, §§ 1023, 2148.
[
Footnote 4]
U.S.C. Tit. 26, § 1247.
[
Footnote 5]
44 Stat. 116; U.S.C. Tit. 26, § 1265.
[
Footnote 6]
Except that it substitutes the word "title" for the word "act,"
45 Stat. 835; U.S.C. Tit. 26, § 2146(a).
[
Footnote 7]
U.S.C. Tit. 2, § 192.