The opinion of the court was delivered by: AVIS
The first count of the indictment in this case is based upon the charge that the defendant willfully attempted to evade and defeat a part of his income tax for the calendar year 1930 by filing a false income tax return in violation of Sec. 146(b) of the Revenue Act of 1928, c. 852, 45 Stat. 791, 835, 26 U.S.C.A. § 145(b), which reads as follows: "Any person required under this title [chapter] to collect, account for, and pay over any tax imposed by this title, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution."
The basis of the defendant's motion is that the indictment was not found and returned within six years of the alleged commission of the offense. The portions of the statute applicable to the questions at issue are found in 18 U.S.C.A. § 585 and read as follows:
"No person shall be prosecuted, tried, or punished, for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information instituted within three years next after the commission of the offense, except that the period of limitation shall be six years --
"(2) for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof, and
"The time during which the person committing any of the offenses above mentioned is absent from the district wherein the same is committed shall not be taken as any part of the time limited by law for the commencement of such proceedings."
The indictment was found and filed on August 27, 1937, six years and one hundred and sixty-six days from March 14, 1931, when it is alleged in the indictment that the return was filed by the defendant. This calculation omits the day of filing of the return, but includes the day of the finding and filing the indictment. This method is in accordance with legal precedents. 16 C.J., p. 230, sec. 354. It is true that in the case of Bowles v. United States, 4 Cir., 73 F.2d 772, 775, the court holds "The trial judge properly ruled that, as the time for filing returns for the year ending December 31, 1930, did not expire until March 15, 1931, the statute of limitations did not begin to run until that date, * * *."
In that case there is no statement in the opinion as to when the return was actually filed, and the controversy arose out of the defendant's contention that the statute began to run on December 31, 1930 at the end of the taxable year. However, on page 774 of 73 F.2d, the court said: "The crime charged in the third and fourth counts was the filing of a false return. The offense was committed at the place where the filing took place upon delivery at the office of the Collector in Baltimore. Wampler v. Snyder, 62 App.D.C. 215, 66 F.2d 195."
I am convinced that the offense was committed, if at all, on the date of filing.
The primary question involved in the instant case is whether the sundry absences of the defendant from the district on official, business, or pleasure trips are within the provisions of the law, and are to be deducted from the total time between the alleged commission of the offense and the date of finding of the indictment, or whether such absences are not contemplated by the statute and therefore cannot be deducted.
It appears by the stipulation that the defendant was absent from the district during the period involved to the extent of 189 days. Corrections in the record would reduce this at least 4 days, and probably more, but in no event sufficient to make the number of days less than 166. The reason for these absences does not seem to me to be important. If the statute applies to one, it applies to all.
The determination of the meaning of the word "absent" in the statute presents considerable difficulty. Counsel for the Government claims that as stated in the law the word is an adjective, and the construction thereof is "being away from a place, withdrawn from a place; not present", and when used as a verb is defined "to take or withdraw (one's self) to such a distance as to prevent intercourse; to withhold from being present; to depart from." Technically the word as used in the statute appears to be an adjective, but an examination of the text in 1 C.J.S., Absent, pages 351 and 352 indicates that on sundry occasions the ...