On Petition for Rehearing
Upon defendant's conviction on three counts of an indictment charging attempts to evade the payment of income taxes for the taxable years 1946, 1947 and 1948 by filing, or causing to be filed, false and fraudulent income tax returns in violation of 26 U.S.C. § 145(b), (I.R.C. 1939), he was sentenced, on each count, to serve two years in prison, the sentences to run concurrently.
On appeal, we reversed the conviction as to Count I and affirmed as to Counts II and III. Defendant’s petition for a rehearing is based, inter alia, upon arguments addressed to the sufficiency of the evidence to prove his guilt upon the net worth theory of proof. We think nothing is added thereby to the points raised and argued on appeal. We adhere to our judgment affirming the conviction as to the two counts.
A rather troublesome question raised by the petition is one upon which defendant did not rely either in the trial court or before us on appeal, namely, that the sentence is invalid. As we have previously stated, the indictment charged three separate attempts to evade income taxes by filing false and fraudulent returns, a charge which has been repeatedly held to allege the felony defined in Section 145(b).1 See e. g. United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61; United States v. Raub, 7 Cir., 177 F.2d 312; United States v. Rosenblum, 7 Cir., 176 F.2d 321, certiorari denied 338 U.S. 893, 70 S.Ct. 239, 94 L.Ed. 548. Defendant now contends, for the first time, that the charge contains the elements of the misdemeanor defined in 26 U.S.C. § 3616(a), (I.R.C.1939) 2, that those elements and *809those of the felony are in all respects identical and that, therefore, it was error for the trial court to impose a sentence greater than that prescribed for the misdemeanor by § 3616(a).
The government admits that both § 145(b) and § 3616(a) apply to income tax returns and cover identical ground. It contends, however, that the government has the authority to elect under which statute it will proceed, or, alternatively, that the subsequent enactment, § 145(b), repeals § 3616(a) by implication.
Before reaching the merits of defendant’s petition, we must determine whether the question can properly be raised at this late date. We think that it cannot. We say this advisedly, and do not purport to determine whether, were the question an open one, we would construe the conceded overlapping of the two statutes as a question of plain error “affecting substantial rights” and therefore noticeable “although * * * not brought to the attention of the [trial] court.” Fed.Rules Crim.Proc. 52(b), 18 U.S.C.A. We think that a determination that the question does not present such error is manifest in the recent pronouncements by the Supreme Court in Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, which, at least, imply that the validity of a sentence under § 145(b) must be challenged by an appropriate proceeding in the trial court.
The indictment in Berra was in all material respects identical to that before us. At the close of all the evidence Berra requested an instruction “that a verdict of guilty of the ‘lesser crime’ under § 3616(a) would be permissible.” 351 U.S. at page 132, 76 S.Ct. at page 687. Although the Court’s decision affirming Berra’s sentence is restricted to the narrow question whether that requested instruction was properly refused, the Court concluding that the refusal did not constitute error, the intendments of the opinion are much broader. The Court assumed, arguendo, that both § 145(b) and § 3616(a) applied and “covered precisely the same ground.” 351 U.S. at page 134, 76 S.Ct. at page 688. It held, however, that the implication of such overlapping was a question of law for the court which had not been raised in the trial court and that “no such questions are presented here.” 351 U.S. at page 135, 76 S.Ct. at page 688.
Mr. Justice Black filed a dissenting opinion, in which Mr. Justice Douglas joined, stating that he would reverse the judgment, or at least remand the case to the district court “for resentencing under the misdemeanor statute, § 3616(a).” 351 U.S. at page 140, 76 S.Ct. at page 691. The dissent is based upon the postulate that the case presented an issue of plain error affecting substantial rights.
We can only conclude that the majority opinion in Berra inherently impels a determination that the question before us does not reflect plain error. Rule 52(b) was designed to reach errors of such a substantial nature that they would, if not corrected, result in a manifest miscarriage of justice. United Brotherhood of Carpenters v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973; United States v. Vasen, 7 Cir., 222 F.2d 3, certiorari denied 350 U.S. 834. Inasmuch as errors within the comprehension of the provisions of this rule are those of such a nature that they must be corrected to prevent a manifest injustice, it is incumbent upon a reviewing court to notice such error sua sponte although the issue presented is not raised on appeal. Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495; United States v. Dressler, 7 Cir., 112 F.2d 972; Lash v. United States, 1 Cir., 221 F.2d 237, certiorari denied 350 U.S. 826, 76 S.Ct. 55; Austin v. United States, 5 Cir., 208 F.2d 420; Simmons v. United States, 92 U.S.App.D.C. 122, 206 F.2d 427; United States v. Kemble, 3 Cir., 197 F.2d 316. Cf. United States v. Jonikas, 7 Cir., 187 F.2d 240, certiorari denied 344 U.S. 877, 73 S.Ct. 171, 97 L.Ed. 679.
In the face of this pronounced duty upon federal appellate courts, see Screws v. United States, supra, the Court *810in Berra took, the position that the issue of the implication of the overlapping of §§ 145(b) and 3616(a) was not preserved because Berra had presented no proper challenge to the sentence to the trial court. As the dissenting Justices aptly observed, 351 U.S. at page 137, 76 S.Ct. at page 689, the instruction which Berra requested advised the lower court of “petitioner’s contention that the offense charged was not a felony but a misdemeanor.” If the question was not preserved for review under the circumstances of that case, it certainly cannot be raised on this appeal in which there was no intimation of error below in the imposition of sentence or on appeal until the petition for rehearing was filed.
The petition is denied.
. “(b) * * *. Any person * * * who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.”
. “Whenever any person—
“(a) False returns. Delivers or discloses to the collector * * * any false or fraudulent list, return, * * *, with intent to defeat or evade the * * * assessment intended to be made;
* * * * *
“he shall be fined not exceeding $1,000, or be imprisoned not exceeding one year, or both, at the discretion of the court, with costs of prosecution.”