Lеroy Clemons (hereinafter called Clemons) was tried in the United States District Court for the District of Maryland under an indictment on two counts, charging violations of 18 U.S.C.A. § 455. Upon a plea of not guilty, Clemons was found guilty by a jury on both counts of the indictment, and was sеntenced by the court to imprisonment for four years.
The indictment was as follows:
“First Count: ‘The Grand Inquest of the United States of America in and for the District of Maryland, inquiring for the body of said District, do on their oath present that Leroy Clemons, late of said District, heretofore, to wit, on or about the 23rd day of December, 1942, at the Fighter Command Station, Camp Springs, Prince George’s County, in the State and District of Maryland, and within the jurisdiction of this Court, did knowingly, wilfully and unlawfully wound another, to wit, Alton Nelson, by shooting the said Alton Nelson in the arm with a dangerous weapon, to wit, a pistol; contrary to the form of the statute in such case made and provided, and against the peace, government and dignity of the United States’;
“Second Count: ‘And the Grand Inquest aforesaid, upon their oath aforesaid, do further present that the said Leroy Clemons, late of said district, heretofore, to wit, on or about the 23rd day of December, 1942, at the Fighter Command Station, Camp Springs, Prince George’s County, in the State and District of Maryland, and within the jurisdiction of this Court, did knowingly, wilfully and unlawfully assault another, to wit, Alton Nelson, by shooting the said Alton Nelson in the arm with a dangerous weapon, to wit, a pistol; contrary to the form of the statute in such case made and provided, and against the peace, government and dignity of the United States.’ ”
The statute involved reads thus:
“U.S.C.A., Title 18, Sec. 455 (Criminal-Code, section 276) Felonious assaults; to murder or rape; other felony; with weapons; beating; simple assault.
“Whoever shall assault another with intent to commit murder, or rape, shall be imprisoned not more than twenty years. Whoever shall assault another with intent to commit any felony, except murder, or rape, shall be fined not more than $3,000, or imprisoned not more than ten years, or both. Whoever, with intent to do bodily*304 harm, аnd without just cause or excuse, shall assault another with a dangerous weapon, instrument, or other thing, shall he fined not more than $1,000, or imprisoned not more than five years, or both. Whoever shall unlawfully strike, beat, or wound another, shall be fined not more than $500, or imprisoned not more than six months, or both. Whoever shall unlawfully assault another, shall be fined not more than $300, or imprisoned not more than three months, or both. (R.S. § 5346; Mar. 4, 1909, c. 321, § 276, 35 Stat. 1143.)”
Two questions are presented upon this appeal for оur determination. The first contention of Clemons is thus stated by Judge Coleman: “(1) That the first count of the indictment is brought under the fourth sentence of Section 455 of Title 18 of the United States Code Annotated, which limits punishment thereunder to a fine of not more thаn $500.00 or imprisonment of not more than six months, or both; and (2) that the second count of the indictment is brought under the fifth or last sentence of Section 455 of Title 18 of the United States Code Annotated, for violation of which a fine of not more than $300.-00 or imprisonment for not more than three months, or both, can be imposed; and that, therefore, since the defendant, following his conviction, has been sentenced by this Court to serve a term of four years, such sentence by this Court to serve is in exсess of any sentence permitted by the statute and therefore invalid.”
The second question involves the assurance of the Assistant District Attorney to Clemons that the indictment had been drawn only under the misdemeanor provisions of the criminal statute.
Under the first question, we certainly cannot commend the draftsmanship of the indictment. Hardly could this indictment be recommended for inclusion in a model form-book. And assuredly we do not wish to put the stamp of appellate approval upon the practice, herein employed, of departing, in an indictment, from the clear language of the statute and of using, in lieu thereof, words with meanings that are notoriously slippery and indefinite. However, we agree with the District Judge that the indictment, in spite of its verbal imperfections, was legally sufficient to charge a felonious assault under the criminal statute. As the District Judge said: “The failure to employ the precise words of the statute is cured by the use of words thаt are synonymous with it in both their legal and their ordinary meaning.” In United States v. National Retail Lumber Co., D.C.,
As Judge Parker declared in Bersio v. United Stаtes, 4 Cir.,
Important, too, in this connection is 18 U.S.C.A. § 556: “No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.”
In the light of these decisions and this statute, we do not deem it necessary to add further to the discussiоn of this point in the opinion of the judge below. His ruling here, we think, constitutes no ground for a reversal.
More difficult and less free from doubt is the second question. It is admitted that, before the trial, the Assistant District Attorney, in charge of the prosecution, аssured Clemons that the indictment was intended to be drawn solely under the misdemeanor provisions of the statute. On this point Judge Coleman, in his opinion, had this to say: “In the present case, there is no claim
It is true, as Judge Coleman observes, that “the trial court is not to be bound by any pre-trial representations made by a prosecuting offiсer with respect to the scope of an indictment or possible sentences thereunder.” In the ordinary course of events, however, the judge will normally approve such arrangements. The United States District Attorney, and his duly appоinted assistants, are charged with heavy responsibilities in the prosecution of criminal offenses against the United States. They possess large powers commensurate with the discharge of these responsibilities. Indeed, the District Attorney is рractically paramount until the beginning of the trial, when usually the judge first appears in the picture.
In Deutsch v. Aderhold, 5 Cir.,
It follows that dealings between one charged with a federal crime and the United States District Attorney are often of the utmost importance in determining whether one so charged has been dealt with fairly and has been given such treatment as accords with the Anglo-Saxon ideals of fair play and the more precise guarantees under the Due Process Clause of the Constitution of the United States, Amendment 5.
Here, the Assistant United States District Attorney gave Clemons what he might reasonably interpret as a definite assurаnce that he would be prosecuted only for a misdemeanor and that he need fear no punishment beyond that fixed in the statute for a misdemeanor. He was, under an indictment that is far from crystal clear, sentenced by the judge to imprisonment for four years — a sentence proper only under the felony provisibns of the statute.
We cannot clearly and surely assume what course of conduct would have been adopted by Clemons and his counsel had they not relied on the statement of the Assistant District Attorney. Perhaps, without this assurance and with a possible felony charge and punishment therefor before him, Clemons might have been willing to plead guilty to a misdemeanor charge, and this might have been aсcepted by the court. Perhaps, without this assurance, Clemons and his counsel might have used much greater diligence in preparation for trial and might have employed equally different tactics during the course of the trial itself. We cаnnot be sure just what would have been the course of events.
It may well be that Clemons and his counsel acted a bit precipitately in accepting this assurance at its face value and in proceeding accordingly. It does nоt follow that they, therefore, acted altogether unreasonably. Certainly the whole procedure smacks of surprise, which should if possible be avoided.
We think, accordingly, that Clemons, under the circumstances of this case, was deprived of his liberty against the spirit, if not the letter, of the Due Process Clause of the Constitution of the United States. We think he has been dealt with unfairly in the light of our standards of justice towards those accused of federal crimes — standards, in our opinion, which the courts must always adequately safeguard and must, under all circumstances, zealously protect.
The judgment of the District Court is reversed, and the case is remanded to the court for further proceedings consistent with this opinion.
Reversed and remanded.