35 F. 824 | U.S. Circuit Court for the District of Northern California | 1888
The caption of the indictment commences as follows: “At a stated term of the said court, begun and holdenat the city and
The question is, whether the clerical error, apparent from the whole record, of writing the word “five,” for the word “eight,” in the caption, vitiates the indictment. In the opinion of the court it does not. Under the practice in England, to which the criminal practice in the national courts generally, and substantially conforms, in the language of Mr. AreliboUl, “the caption is no part of the indictment. It is merely the style of the court where the indictment was preferred, which is prefixed as a kind of preamble to the indictment upon the record, when the record is made up, or when it is returned on certiorari.” Archb. Grim. PI. 27. He then gives the form of the caption, which is somewhat more full than that of the indictment in this case. Mr. Bishop, after stating that the practice in some of the states is different from that of England, says: “'ll follows from what has been said, that though the caption is a part of the record, it is not of the indictment, and it may be amended to the same extent as the record in any other placo.” 1 Bish. Grim. Pr. § 6(>1. And he adds: “The commencement, whether in England or this country, is not a part of the indictment. It is a preliminary statement, liable to be corrected, like an indorsement on the indictment by the clerk of the court, or a docket entry, before it becomes of record, or after-wards, in the same manner as any other part of the record. Such is pretty plainly the true view, though the authorities on the question are not entirely uniform and distinct.” Id. § 622. So that neither what is technically called the “caption” nor the “commencement” is a part of the indictment.
We also think the case is within the provisions of section 1025, Rev* St., which are that, “no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall 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.” If not within this statute it is difficult to perceive what useful purpose this section can .serve. There is no defect or imperfection that can, possibly, tend to the prejudice of the defendant. The motion to quash the indictment is denied.