C. A. Dupree, Appellant, v. United States of America, Appellee, 220 F.2d 748 (5th Cir. 1955)

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US Court of Appeals for the Fifth Circuit - 220 F.2d 748 (5th Cir. 1955) April 15, 1955

Appeal from the United States District Court for the Western District of Texas; Ben H. Rice, Jr., C. J.


On petition for rehearing.

Rehearing denied.

For former opinion, see 218 F.2d 781.

John D. Cofer and G. Hume Cofer, Austin, Tex., for appellant.

C. F. Herring, U. S. Atty., Bradford F. Miller, Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before HOLMES and TUTTLE, Circuit Judges, and ALLRED, District Judge.

PER CURIAM.

We have carefully considered the motion for rehearing filed by the United States. In the light of the teaching of Holland v. United States,1  which was not available to the Government when presenting this case or to the trial court when considering the difficult issues involved [218 F.2d 783], "`appellate courts should review the cases [of this general type] bearing constantly in mind the difficulties that arise when circumstantial evidence as to guilt is the chief weapon of a method that is itself only an approximation.'" We are also told that "the complexity of the problem is such that it cannot be met merely by the application of general rules", and that "charges should be especially clear, including, in addition to the formal instructions, a summary of the nature of the net worth method, the assumptions on which it rests, and the inferences available both for and against the accused."

We do not believe this case either in the adequacy of proof as to the starting available funds in January, 1946, or in the clarity of the charge, meets the standards implicit in this pronouncement of the Supreme Court.

The motion for rehearing is, therefore,

Denied.

 1

 348 U.S. 121, 129, 75 S. Ct. 127