Convicted on four counts of an indictment charging him with wilfully attempting to defeat and evade, in violation of 26 U.S.C.A.Int. Rev. Code, § 145(b), income taxes for the years 1942 and 1943,1 defendant has appealed. Earnestly insisting that, upon the undisputed evidence,2 no case was made out against him and a verdict should have been instructed in his favor, he is here urging that the judgment should be reversed and the cause dismissed. In the *400alternative, he as earnestly insists that if the evidence did make out a case for the jury, the trial was unfair and not in accordance with law in that it was attended with such and so many prejudicial errors in the offering and admission of evidence, including the cross examination of defendant, and in respect of the charge given and the special instructions refused,3 that the judgment must be reversed and the cause remanded for trial anew.
While we cannot' agree with appellant that the evidence demanded the direction of a verdict in his favor, we do agree with him that the trial was attended with errors resulting so greatly to his prejudice that the judgment must be reversed and the cause remanded for trial anew]
Under the circumstances of the case, including: defendant’s position as assistant to Eastus in the office of the United States Attorney and his law partner; the involvement of Eastus’ office as United States Attorney in a general investigation; ' the frenzied outbursts and. actions of Eastus, as testified to, together with the defendant’s admission that he had received the fees and had not returned them'; it was of the greatest importance to a just and fair trial that defendant be protected from prejudice arising out of other matters not germane to the trial and that his defenses, his reasons for not returning the income until 1945 and for the other things that he had done, be fully and fairly submitted to the jury. It was particularly important that hé he tried not on general principles as to whether he was an unworthy character but upon specific instructions applicable to the law and the facts of the case on trial so that the jury could’reach a fair and correct determination as to whether he was or was not proven guilty of the crime charged.
Instead of being tried in this way, the prosecution was allowed, without adequate check or curative action, to bring into the cause collateral matters which they deemed would be, and which were, damaging to defendant. In addition, the judge, instead of instructing the jury in terms precisely appropriate, in the light of the governing law, to the offense charged, gave a charge which wholly failed to do this, and also refused to give defendant’s requested instructions in which his contentions and defenses were carefully and, in substance, correctly set out.
In the Spies case,4 the Supreme Court, pointing out with admirable clarity and correctness the nature of the accusation pressed in this case and of the evidence required to establish guilt of it, has left in no doubt the right of a defendant so charged to have his defenses clearly and fairly put. Definitely settling that the mere failure to return income and pay the tax on it, though the taxpayer knew that it was due, would not constitute the offense of wilfully attempting to defeat and evade the income tax, and stating that something more than this must be shown, the court said: “By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one’s affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal.”
It said, too: “We think a defendant is entitled to a charge which will point out the necessity, for such an inference of willful attempt to defeat or evade tax from some *401proof in the case other than that necessary to make out the misdemeanors; and if the evidence fails to afford such an inference, the defendant should be acquitted.”
In the light of these pronouncements, it is quite plain that the theory on which the cause was tried below, that defendant’s failure to return the income, knowing that it was due, of itself made out a case which he was required to rebut, was a wholly incorrect one and that the judgment must be reversed and the cause remanded for further and not inconsistent proceedings.
Reversed and remanded.