Pankratz Lumber Co. v. United States

NETERER, District Judge.

The appellant corporation was indicted in two counts, and George and John Pank-ratz, president and treasurer, respectively, of appellant, were indicted in two- counts of separate indictments charging falsification of income tax returns for the years 1927 and 1928 (26 USCA § 1266). The acts and transactions charged in each indictment are substantially the same, George and John Pank-ratz, as president and treasurer, made the returns for the appellant. The appellant was-eonvieted on count Z, charging falsification of the 1928 return, and -the Pankratzes were acquitted- ,on both counts. Appellant contends that the verdict of conviction is fatal because inconsistent and, from denial of motions in arrest of judgment and for a new-trial, appeals.

It was said at bar and in the briefs that the indictments were consolidated’ and tried together. 18 USCA § 557,. authorizes-consolidation of indictments when the parties are the same and the acts and transaction!are the same. When indictments are consolidated they become in legal effect separate-counts in one indictment. Kettenbach v. United States (C. C. A.) 202 F. 377 . In the--instant ease the parties are not the same. There is no order of consolidation in the record. The indictments were tried together,submitted on the same evidence, and separate-verdicts returned. Separate indictments maybe tried by the same jury and on the same evidence by consent of all the parties, event-hough the parties may not be the same in theindietments.

Appellant is a distinct corporate entity,, and the fact that its officers are the sole stockholders does not change the status or relation. The theory opposing inconsistent verdicts is no doubt former acquittal. If A is charged in several indictments with the same transad-' tions and acts, and these indictments are consolidated and he is acquitted on one count and convicted on another for the same transactions and acts, to permit the inconsistent verdict to stand would punish him for aots- and transactions of which the jury had acquitted him. The finding of not guilty becomes res ad judicata as to A; but B, on the-same charge, may not on conviction invoke a not guilty verdict as to A as res adjudieata. In the instant ease, irrespective of any view the court may have as to inconsistent ver- *175 diets, the appellant may not claim that the verdict of not guilty as to the officers is inconsistent as to it and, therefore, res ad judi-cata. There is no intimation that the evidence is insufficient to convict appellant; ample evidence is disclosed by the record.

Affirmed.