BERRA V. UNITED STATES, 351 U. S. 131 (1956)

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U.S. Supreme Court

Berra v. United States, 351 U.S. 131 (1956)

Berra v. United States

No. 60

Argued March 26, 1956

Decided April 30, 1956

351 U.S. 131


Petitioner was indicted for wilfully attempting to evade federal income taxes by filing with the Collector "false and fraudulent" tax returns in violation of 26 U.S.C. (1952 ed.) § 145(b). This, it is here assumed, is also a violation of 26 U.S.C. (1952 ed.) § 3616(a), the penalty for the violation of which is lesser than for a violation of § 145(b). Petitioner was convicted and sentenced to imprisonment greater than the maximum possible had the conviction been under § 3616(a).

Held: it was not error for the trial judge to refuse to give to the jury an instruction requested by petitioner that a verdict of guilty of the "lesser crime" under § 3616(a) would be permissible. Pp. 351 U. S. 132-135.

(a) It is here assumed, arguendo, that § 3616(a) is applicable to income tax returns. P. 351 U. S. 133.

(b) The contention that, since there was no difference in the proof required to establish violations of §§ 145(b) and 3616(a), the indictment must be taken as charging violations of both sections, and that, under Rule 31(c) of the Federal Rules of Criminal Procedure, the jury should have been permitted to make the choice between the two crimes, cannot be sustained. Pp. 351 U. S. 133-134.

(c) Rule 31(c) was not intended to change the jury's traditional function of deciding only the issues of fact, and taking the law as given by the court. P. 351 U. S. 134.

(d) Whether § 3616(a), rather than § 145(b), should apply was not for the jury to determine. Pp. 351 U. S. 134-135.

221 F.2d 590 affirmed.

Page 351 U. S. 132

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