Opinion
No. 41594.
November 20, 1931.
Anthony Savage, U.S. Atty., and Jeffrey Heiman, Asst. U.S. Atty., both of Seattle, Wash., for the United States.
Bonsted Nichoson, of Yakima, Wash., for defendant.
Reese B. Brown was accused of an offense, and he demurs to the indictment and moves to require election between charges and for bill of particulars.
Demurrer overruled, and motions denied.
The indictment charges that the defendant did unlawfully and feloniously aid and assist in, and procure, counsel and advise the preparation and presentation of a false and fraudulent income tax return, and sets out the way in which it was done. The indictment is not in the disjunctive, as set out in the statute. All of the disjunctive, perhaps, could be set out in different counts, and state the different offenses, where the statute makes different acts offenses, but where all of the acts are intended to charge a single offense in a single count, and are set forth conjunctively, it is not vulnerable to a demurrer. Tiberg v. Warren (C.C.A.) 192 F. 458; see, also, United States v. Dembowski (D.C.) 252 F. 894; Bridgeman v. United States (C.C.A.) 140 F. 577; see, also, Crain v. United States, 162 U.S. 625, 16 S. Ct. 952, 40 L. Ed. 1097; Simpson v. United States (C.C.A.) 229 F. 940; Dell'Aira v. United States (C.C.A.) 10 F.2d 102. The demurrer is overruled.
Motion is likewise made to elect between the charges of "preparing and causing to be prepared an income tax return for the said Sarah E. Smith of May 10, 1930," and the charges of "causing to be presented and filed with the said Collector of Internal Revenue" said income tax return, etc. This motion must be denied. It is clearly not duplicitious. See Bridgeman v. United States, supra.
A bill of particulars is likewise moved to require a statement of specific acts alleged to have been committed by the defendant in unlawfully and willfully and feloniously aiding and assisting in, and procuring, counseling, and advising in preparation and presentation, etc., the income tax return, etc., and the statement of the acts constituting his conduct in preparing and causing to be prepared the income tax return for said Sarah E. Smith, and a statement of specific acts constituting defendant's conduct at the city of Tacoma in presenting and causing to be presented and filed with the collector of internal revenue, etc., said income tax return — clearly an attempt to obtain the testimony of the government in advance. Motion denied.