The opinion of the court was delivered by: KRAFT
The defendant, William Garber, was convicted, as an individual and as president of William Garber, Inc., of wilfully attempting to evade and defeat personal and corporate income taxes for the years 1960 and 1961, upon all counts of a four-count information.
His motion for new trial assigned twelve reasons, but the brief and argument of counsel were limited to the following two grounds:
(1) the Court erred in commenting on Exhibit G-9 in response to a question from the jury;
(2) the Court erred in locking up the jury overnight and permitting it to deliberate an excessive amount of time.
Briefly stated, the evidence which the jury found credible, was sufficient to establish that the defendant failed to report, as income, $15,000 for 1960 and $28,000 for 1961. The defendant admitted that he did not report the $15,000, but disputed the accuracy of the $28,000. He contended, in defense, that he used these business receipts to purchase, for cash, merchandise, which he asserted he had sold in the regular course of his business.
As a part of its case, the United States utilized a schedule (Exhibit G-9) prepared by a special agent of the Internal Revenue Service. This schedule reflected a comparison of periodic bank deposits, made by the defendant for the year 1960, with deposits recorded in a spiral notebook (Exhibit G-6) by the defendant, which he discarded in a trash box in January of 1962.
In addition to the thirty dated transactions compared, there appears on the schedule a column headed "Omitted Receipts" which purports to show thirty omissions of $500 each, totalling $15,000 for the year 1960, which the Government claimed the defendant earned but failed to report as income.
The record discloses that at 8:03 P.M. on the evening of September 27, the jury returned to the courtroom with the following inquiry:
"The Jury would like to know if it is possible to get a list of suppliers for Mr. Garber who testified and to what extent payments, were either made by cash or check or just a list of suppliers who testified."
At the outset, we again instructed the jury that it must consider the evidence produced by both sides at the trial. Before we proceeded to recount the testimony of the suppliers who testified, we again cautioned the jury that it was their "* * * recollection that controls, not counsel's or mine." (n. t. 359-360)
Thereafter, we stated our recollection of the testimony of all the suppliers who testified. (n.t. 360-363) Then, we addressed our attention to the remaining part of the jury's question. " . . . to what extent were payments made by cash or check." (n. t. 363) In our response to this aspect of the jury's inquiry, we reviewed the evidence which disclosed that the defendant did not give specific figures of the payments said to have been made to the suppliers in cash or by check:
"As I recall it, he said that the whole of the $15,000 which he failed to report, which is shown as not deposited in any bank in round figures of $500 each, he says ...