UNITED STATES
v.
JOHNSTON

U.S. | 1925-05-11
No. 111
268 U.S. 220 Supreme Court of the United States (1925) Caution
Also reported at: 69 L. Ed. 925 · 45 S. Ct. 496 · 1925 U.S. LEXIS 562 · SCDB 1924-134
Cited by 75 cases

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Synopsis

Johnston was convicted of failing to pay and report federal admission taxes on boxing match receipts and of embezzlement under the Criminal Code. The Supreme Court affirmed the tax evasion convictions but reversed the embezzlement conviction, holding that a person required to pay over collected taxes is a debtor to the government rather than a bailee, and therefore cannot commit embezzlement; the Court also rejected Johnston's argument that his formal status as agent for a New York corporation insulated him from personal tax liability when he actually controlled the collection of fees.

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Opinion of the Court
Mr. Justice Holmes

Mr. Justice Holmes delivered the .opinion of the Court.

The respondent, Johnston, was convicted on an indictmentcharging in separate counts a failure to pay over the tax upon admission fees received at certain boxing matches and a failure to make return to the collector of internal revenue of the money so received, contrary to the Act of February 24, 1919, c. 18, §§ 800, 802, 1308(b); 40 Stat. 1057, 1120, 1143. He also was convicted under § 47 of the Criminal Code of embezzling the amounts collected as taxes on the same occasions. Act of March 4, 1909, c. 321, § 47; 35 Stat. 1097. The judgment was reversed and the District C6urt was directed to dismiss the indictment by the Circuit Court of Appeals. 290 Fed. 120. A writ of certiorari was granted by this Court as the decision was said to be of grave importance to the administration of the revenue laws. 263 U. S. 692.

So far as the charge of embezzlement goes we think that the Court below and the intimation of the Treasury Department, that it followed were clearly right. However it may have been under other statutes (United States v. Thomas, 15 Wall. 337) it seems to us that under this law the person required to pay over the tax is a debtor and not a bailee. The money paid for the tax is not identified at the outset but is paid with the price of the ticket that belongs'to the owner of the show. We see no ground for requiring the ticket office of a theatre to create a separate fund by laying aside the amount of the tax on each ticket and to keep it apart, either in a strong box or as a separate deposit in a bank. Reports are required only once a month, §§ 802, 502, which does not look as if the Government were dealing with these people otherwise than with others answerable for a tax. Further argument seems unnecessary upon this point.

On the other counts we are of opinion that the Court below was wrong. We do not grant a certiorari to review evidence and discuss specific facts. But the Court seems to have regarded the formal relations of Johnston to the Central Manhattan Boxing Club, Inc., made necessary by the laws of New York, as conclusive upon his relations to the United States. The laws of New York permitted a license only to a corporation and so Johnston may have assumed the technical position of agent and manager for the Club. But if as a matter of fact all this was machinery to enable Johnston to give exhibitions, collect the entrance fees and make himself liable for the tax, it properly might be alleged that he collected the fees and if he wilfully failed to pay that he refused and failed to pay the tax. As the jury found Johnston guilty, although with an earnest recommendation of mercy, we are of opinion that the sentence and judgment of the District Court, which was much less than it might have been under § 1308(b), must be affirmed.

Judgment of the Circuit Court of Appeals reversed.

Judgment of the District Court affirmed.

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Citator

Cited By (21 total)

  • Kyles v. Whitley, 514 U.S. 419 (U.S. 1995)
    …ered to the policy that, when the petitioner claims only that a concededly correct view of the law was incorrectly applied to the facts, certiorari should generally (i. e., except in cases of the plainest error) be denied. United States v. Johnston, 268 U. S. 220, 227 (1925). That policy has been observed even when the fact-bound assessment of the federal court of appeals has differed from that of the district court, Sumner v. Mata, 449 U. S. 539, 543 (1981); and under what we have called the “two-court ru…
  • Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445 (U.S. 1985)
    …rs other than the perceived correctness of the judgment we are asked to review,” Ross v. Moffitt, 417 U. S. 600, 616-617 (1974), and that we “do not grant a certiorari to review evidence and discuss [*461] specific facts.” United States v. Johnston, 268 U. S. 220, 227 (1925).4 It is not unreasonable to expect a State’s highest legal officer to know the State’s law and to bring to this Court’s attention the rules of state law that might affect the sound exercise of our discretion to grant certiorari, or that…
  • Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521 (U.S. 1957)
    …s has merely reviewed evidence that has already been reviewed by two lower courts, and in so doing it ignores its own strictures to the bar that “We do not grant a certiorari to review evidence and discuss specific facts.” United States v. Johnston, 268 U. S. 220, 227. See also Houston Oil Co. v. Goodrich, 245 U. S. 440; Southern Power Co. v. North Carolina Public Service Co., 263 U. S. 508; General Talking Pictures Corp. v. Western Electric Co., 304 U. S. 175, 178. Constant complaints have been made by succ…

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