Seitz, Aldisert and Stahl, Circuit Judges.
Again we are called upon to review the propriety of the "wilfulness" charge in a prosecution under Section 7203 of Title 26, U.S. Code that anyone "who willfully [sic] fails to * * * make * * * [a required income tax] return * * * shall * * * be guilty of a misdemeanor * * *." The Appellant was convicted by a jury and there is ample evidence to support the conviction. It cannot be seriously questioned that the charge as actually given by the court was proper.*fn1
The extremely narrow question presented is whether reversible trial error resulted from the trial court's failure to charge on the complete text of a requested point-for-charge after indicating to counsel prior to closing argument that it would so instruct the jury.
The requested, but undelivered Point No. 6 contained the statement that the government had to prove that "such failure to file the return was with the intention to evade and defraud the government." Notwithstanding this omission, the court did incorporate defendant's Point No. 9 into its charge, which read: "The evil motive or bad purpose in a prosecution such as this one must consist of proof of the deliberate intention not to file a return so that the government would not know the extent of a taxpayer's liability." The propriety of this latter language was expressly approved by this court in United States v. Cirillo, 251 F.2d 638 (3 Cir. 1958) and United States v. Litman, 246 F.2d 206 (3 Cir. 1957).
We recognize that the failure of the trial court to charge on requested Point 6 was a technical departure from the commandment of Rule 30 that "The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed." Whether this omission requires the granting of a new trial, however, depends upon an examination of the charge in its entirety to determine if there was fundamental prejudice to the defendant.
Viewed in this light, we do not believe that the trial court's failure to employ the specific language of Point 6 was prejudicial.*fn2 The charge as delivered, requiring the government to prove that there was an intent not to file so as to conceal the extent of tax liability from the government, was but an alternative expression of what Point 6 defined as the "intention to evade and defraud the government." The two differed only in form, and not substance.
The situation is readily distinguishable from that which confronted the court in Loveless v. United States, 104 U.S. App. D.C. 157, 260 F.2d 487 (1958), where the court precluded argument on the issue of manslaughter and then, reversing itself after some deliberation, charged on the elements of both murder and manslaughter. Under such circumstances, it was properly held that the failure to afford argument on the issue of manslaughter was fundamental error.
In contrast, it cannot be suggested that the omission of Point 6 seriously restricted the closing argument of defense counsel; he was free to explore fully the elements of wilfulness and the necessity that the government prove an evil or bad purpose in deliberately failing to file a tax return.
Although the better practice would have been to advise counsel prior to the charge that the court would not include this particular point, and to allow reargument if then desired, we do not believe that this departure from the strict terms of Rule 30 generated such fundamental prejudice to the defendant as to constitute reversible error.
The judgment of conviction will be ...