U.S. Supreme Court UNITED STATES v. MURDOCK, 290 U.S. 389 (1933)

[Page 290 U.S. 389, 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, 52 S.Ct. 63, 82 A.L.R. 1376

The petitioner pleaded not guilty, was put upon trial, and convicted. He appealed to the Circuit Court of Appeals, which reversed the judgment,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.

[Page 290 U.S. 389, 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 section 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 any one 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: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. 389, 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. Footnotes

Footnote 1 62 F.(2d) 926.

Footnote 2 290 U.S. 606, 54 S.Ct. 51, 78 L.Ed. --.

Footnote 3 U.S.C. tit. 26, 1023, 2148 (26 USCA 1023, 2148).

Footnote 4 U.S.C., tit. 26, 1247 (26 USCA 1247); 26 USCA 1247 and note.

Footnote 5 44 Stat. 116; U.S.C., tit. 26, 1265 (26 USCA 1265).

Footnote 6 Except that it substitutes the word 'title' for the word 'act,' 45 Stat. 835; U.S.C. tit. 26, 2146(a), 26 USCA 2146(a).

Footnote 7 U.S.C., tit. 2, 192 (2 USCA 192).