al capone and indictment and count 1 and count 13

The previous essay showed why Capone's 22-count indictment had to be brought under two separate Revenue Acts. This essay will give samples of the indictment language against Capone. He was convicted of Counts 1, 5, 9, 13 and 18. Counts 1, 5, and 9 were identical (the felony counts) except for the year alleged (1925, 1926 and 1927) and the amount not paid to the federal government, and Counts 13 and 18 were identical (the misdemeanor counts) except for the year alleged (1928, 1929) and amount not paid. Here is an example of each.

Count 1 of the June 5, 1931 Indictment--A Felony

Alphonse Capone * * * hereinafter in this indictment sometimes called the defendant, on, to wit, the 15th day of March, 1926, * * * unlawfully and fraudulently did then and there willfully attempt to evade and defeat an income tax in the sum of, to wit, $55,365.25, imposed by an Act of Congress approved February 26, 1926, * * * known as the Revenue Act of 1926, upon his net income had and derived during the calendar year ended December 31, 1925, that is to say, his gross income had and derived during said calendar year less the deductions allowed under Title II (Income Tax) of said Act of Congress; that said willful and fraudulent attempt to evade and defeat said income tax was by the means and in the manner following, that is to say:

‘That the said Alphonse Capone, * * * during the calendar year 1925 was an individual who was married and living with his wife and who on December 31, 1925, had one dependent, and whose annual accounting period was on the basis of the calendar year and not on the basis of a fiscal year, and whose legal residence and principal place of business during said calendar year and until and including March 15, 1926, were within the Eastern Division of the Northern District of Illinois and within the said First Internal Revenue Collection District of Illinois, and who had and derived during the calendar year ended December 31, 1925, a gross income for said calendar year of over $5,000.00, to wit, $257,286.98, and who was after the 31st day of December, 1925, and on or before the 15th day of March, 1926, required by the Act of Congress aforesaid to make to the Collector of Internal Revenue for the Internal Revenue Collection District aforesaid, under oath, a return stating specifically the items of his gross income and the deductions and credits allowed under Title II of the Act of Congress aforesaid for the purposes of computation, assessment and collection of any tax imposed by Title II of said Act of Congress.

‘That the said defendant was further required by the Act of Congress aforesaid to pay to the Collector of Internal Revenue for the Internal Revenue Collection District aforesaid for the calendar year ended December 31, 1925, an income tax upon his net income * * * by reason of the fact, which the said grand jurors charge on their oath to be a fact, that said defendant had and derived and received during said calendar year a gross income of to wit, $257,286.98, from which said gross income he, the said defendant, was entitled to deductions for said calendar year 1925 in the sum of, to wit, $1.00, and no more, and had and derived and received a net income during said calendar year 1925 of, to wit, $257,286.98, upon which said net income for the calendar year last aforesaid there became due on March 15, 1926, to the United States of America, after the allowance of all credits, a tax of, to wit, $55,365.25, of which said tax at least one-fourth should have been paid then and there by the said defendant to the Collector of Internal Revenue aforesaid.

‘That the said defendant, * * * on, to wit, March 15, 1926, well knowing all the premises, unlawfully and fraudulently did then and there willfully attempt to evade and defeat the income tax aforesaid upon his said net income for the calendar year 1925; * * *'

My comment. Isn't this a great indictment? It gives the impression that the "said" Alphone Capone is sort of a successful businessman, with wife and child, who neglected to pay his income tax. He is a "calendar year" rather than "fiscal year" filer, a distinction that Capone, no doubt, would have thought ludicrous. Note, too, that income tax only had to be paid for incomes above $5,000 per year. At this point in the early history of the income tax, it was only a tax on the wealthy. That Capone "earned" more than $250,000 in calendar year 1925 came at the end of a remarkable federal investigation, which Capone's biographers no doubt tell about. Too bad he didn't take deductions. Hm. Deductions for equipment, such as murder instruments? Well, let's move to a sample of the misdemeanor counts.

Count 13--A Misdemeanor

"That on, to wit, the 15th day of March, 1929, * * * the said Alphonse Capone * * * unlawfully did willfully and knowingly fail to make a return of income required by an Act of Congress approved May 29, 1928, * * * which said Act of Congress is known as the Revenue Act of 1928, that is to say, a return stating specifically the items of his gross income had and derived during the calendar year 1928 and the deductions and credits allowed under Title I (Income Tax) of said Act of Congress: that said willful failure to make the return aforesaid was under the circumstances following, that is to say:

‘That said defendant during the calendar year 1928 was an individual who was married and living with his wife and who on December 31, 1928, had one dependent, and whose annual accounting period was on the basis of the calendar year and not on the basis of a fiscal year, and whose legal residence and principal place of business during said calendar year and until and including March 15, 1929, were within the Eastern Division of the Northern District of Illinois and within said First Internal Revenue Collection District of Illinois, and who had and derived during the calendar year ended December 31, 1928, a gross income for said calendar year of over $5,000.00, to wit, $140,536.93, and who was after the close of the calendar year 1928 and on or before the 15th day of March, 1929, required by the Act of Congress aforesaid to make to the Collector of Internal Revenue for the Internal Revenue Collection District aforesaid, under oath, a return stating specifically the items of his gross income and the deductions and credits allowed under Title I of the Act of Congress aforesaid for the purposes of computation, assessment and collection of any tax imposed by said Title I of said Act of Congress; that the said defendant, having between the close of the calendar year 1928 and the 15th day of March, 1929, failed to make the return aforesaid, unlawfully did, on said 15th day of March, 1929, within the judicial division and district aforesaid, and within the collection district aforesaid, and within the jurisdiction of this court, then and there willfully fail to make the return aforesaid stating specifically the items of his gross income and the deductions and credits allowed under Title I of the said Act of Congress, or any return whatsoever, to the Collector of Internal Revenue for the Internal Revenue Collection District aforesaid as required by the Act of Congress aforesaid or to any other proper officer of the United States. * * *'

We see that in 1928 Capone's income was "down" to around $140,000. Must have been a slow year for him.

Conclusion

At the end of his trial in October 1931, Capone was convicted of the violations alleged in these five counts. He would be sentenced to prison in November 1931. It is here that the things get a little confusing, so let's take is slow and try to answer RC Marlen's questions.

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