Appellant was convicted upon two counts of an indictment charging violations of the Internal Revenue laws relating to intoxicating liquor. For failure to pay the special tax required of a wholesale dealer in liquor he was sentenced to a year and a day and fined $750.00. 26 U.S.C.A. 5111, 5691. For a violation of the duty imposed upon a wholesale dealer to keep records he received a like penal sentence and was fined $250.00. 26 U.S.C.A. 5114, 5621. The penal sentences imposed were designated to run concurrently.1 Complaint is now made to the sufficiency of the indictment and to certain of the court's instructions.

The attempt to attack the sufficiency of the indictment is without merit and requires little consideration. No presentation of the claim was made before trial, a clear non-compliance with Rule 12(b)(2) of the Rules of Criminal Procedure, 18 U.S.C.A.2 Since appellant's only claim is that the indictment lacks detail negativing exceptions to the provision of Sec. 5111 and further detail showing him to be a wholesale dealer, the criticism is to the form of the indictment, not to the substantive or jurisdictional allegations. Pickett v. United States, 216 U.S. 456, 30 S. Ct. 265, 54 L. Ed. 566; Elder v. United States, 9 Cir., 142 F.2d 199.

Appellant points to alleged error in two regards in the court's charge relating to Count III. Both contentions are adequately protected by exceptions.

We note those portions of the court's instructions pertinent to appellant's assertion that the charge constitutes a direction of a verdict of guilty.3

Two possible interpretations may be made to the court's statement 'So, I'll submit that count to you but you must find as to that count, you must find beyond a reasonable doubt that he did fail and neglect to keep the records required.' Isolating this sentence from the rest of the charge the words may well be read to constitute a mandate to the jury upon a question of fact determinative of guilt or innocence. Such an instruction would ordinarily be error requiring reversal. But in the instant case the determinative facts were undisputed and noted as such by the trial court. Credibility was not an issue. In such case, says Mr. Justice Holmes in Horning v. District of Columbia, 254 U.S. 135, 41 S. Ct. 53, 65 L. Ed. 185, the function of the jury is little more than formal and no reversible error occurs when a trial court instructs a jury in effect to find a defendant guilty upon undisputed facts so long as the jury is allowed the technical right to decide against the law and the facts. No later pronouncement of the Supreme Court has overruled or modified Horning although many cases find easy grounds of distinguishment. Cf. United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381; United States v. Meltzer, 7 Cir., 100 F.2d 739; Carney v. United States, 9 Cir., 295 F. 606.

But it is fundamental law that instructions must be considered as a whole and that individual sentences should be considered in light of the entire charge. Moffitt v. United States, 10 Cir., 154 F.2d 402; Haskell v. United States, 10 Cir., 241 F.2d 790. And it is apparent that the court, though expressing a firm opinion as to the impact of the evidence, is reserving the ultimate decision to the jury and is intending to give no mandate. The questioned words should be interpreted in favor of consistency rather than isolated to create conflict.

Appellant further asserts that the instruction is faulty through inclusion of the word 'fail' since the word nowhere appears in Sec. 5621. 'Fail' and 'neglect' are often used synonymously and we can see no possible prejudice to appellant from this choice of words.

The judgment is affirmed.