Spriggs

Our opinion in this case filed August 20, 1952 is hereby set aside and the following opinion is substituted.

Appellant was indicted on three counts of attempting to defeat and evade income tax in violation of 26 U.S.C.A. § 145 (b). After receiving a Bill of Particulars concerning each count, appellant entered a plea of not guilty. Upon trial, appellant was acquitted on Counts I and II upon his motion for a directed verdict of acquittal. He was also acquitted upon portions of Count III. That portion of Count III upon which appellant was found guilty is found in the allegations contained in the appellee’s response to appellant’s motion for a bill of particulars:

“Depreciation overstated:

As to this portion of Count III, appellant’s motion for a judgment of acquittal was denied, and the jury returned a verdict of guilty. Appellant thereafter filed motions for judgment notwithstanding the verdict and for a new trial, both of which were denied. This appeal followed.

At the trial the Government based its case upon the testimony of two Internal Revenue Agents (Arthur R. Beals and Lloyd M. Tucker), and the 1944, 1946, and 1947 income tax returns of Spriggs. On this appeal the…