United States v. Denny
165 F.2d 668
7th Cir.
1947
Check Treatment

*1 MINTON, Before KERNER Circuit LINDLEY, District Judges, Judge. KERNER, Judge. Circuit this case contained The. Nothing need be said

three counts. men- since defendant was not count third therein. The first tioned conspiring and five others transport commerce meat in interstate butter, theretofore knowing the same was found Defendant been stolen. count, The second guilty on count. 415, involved the based 18 U.S.C.A. § except the name parties, same *2 6(59 court, change appeared therein no can be made Denny Keith Gordon that the of the indictment. charged Kenny. Gordon Keith and persons meat named therein caused unquestionably It is true that the $10,000 trans- to be butter of the value of recognized common long ago law that the Hammond, Illinois, ported Chicago, body of an not be amend indictment could had Indiana, merchandise the said knowing rule, ed. reasoning The behind this count the been stolen. On this theretofore stated the court in the case of United guilty, judgment jury verdict returned a 764, 766, Fawcett, Cir., 3 115F.2d judg- from that was thereon and rendered finding of a A.L.R. “that appealed. ment defendant has and, grand jury upon depending oath assigned The the trial court upon amongst va others for its fact permitted attorney the district lidity, could be amended indict- name count of the second presiding or the manner of officer Kenny” ment from “Gordon Keith to “Gor- substance concurrence without the Denny.” don Keith presented it.” And been held that whenever The record discloses that the re- after requires substance, must amendment of turn of the arraign- indictment and before purpose be sent back for that to the ment defendant moved for dismissal and abatement of this ground count on the 781, 30 L.Ed. 849. his Denny name true was Gordon Keith and Kenny. not Gordon Keith The rule. government attorney concedes this district thereupon petition, asserts, however, pray- filed its verified He mere misnomer that a permitted ing name that it to amend this count letter of the last initial petition In the not a indictment. it was accused in the indictment is alleged Kenny “that Gordon Keith re- within condemnation of of substance is, Bain, supra. ferred to in second count of indict- Ex Parte actually therefore, ment herein bears whether indictment can Denny Gordon Keith and refer- that the situation here disclosed. amended in the person Jury ence to the indict- Grand is a ac An indictment written Kenny ed as Gordon Keith steno- charge cusation or of crime which the mistake, graphic stenographer who was party fully apprised should be accused drawing inadvertently the indictment strik- the offense the nature of order ing the ‘K ‘D’, letter instead of the letter prepared come court for into person and that Jury the Grand True, express his it is difficultto defense. for indicting the offense set forth applicable every exact language, second count of the one indictment is and what constitutes the substance of an indict person as same the Gordon Keith Den- formal, all con ment what courts ny referred in Count I of the said in- indictment must cede dictment.” ingredients set forth all the offense. The court overruled defendant’s motion charge, or as This the substance granted in abatement and leave to amend. p. is said in “the statement 27 Am.Jur. thereupon amended strik- proved every which must fact ing therefrom name “Gordon Keith complained of a crime is make act Kenny” inserting place its the name * substance, matter of else all ** * Denny.” Keith Challenging “Gordon is formal.” amended defendant moved jurisdictions adopted Many have statutes ground to dismiss on the that the indict- no providing that indictment shall be abated could be amended. This motion accused, misnomer of overruled. court may, ap- in case of misnomer appeal trial, or in the course ground On this taken before pearing is that an indictment has indictment to be accord- been cause the amended by grand jury returned filed with the Under to the fact. statutes ing these change of charge a different from that found offense where have courts one of involved, jury; defect is identity guilt nothing A.L.R. to do with the and 68 form. 7 A.L.R. 1520 be suf with the should evidence which *3 thought progressive In the line conviction, init ficient to nor did warrant the enunciated, by these statutes any rights. prejudice manner his substantial formal effect of purpose the eliminating of We the amendment was conclude that prejudice de a wise defects which in no properly it al one of and that was form, rights, on fendant or affect Capriola States, 7 lowed. v. Cf. United development of theory that Fawcett, Cir., v. 5; F.2d United States 61 justice narrow technical administration of Cir., Angelo, supra; United States v. 3 to the end be eliminated should formalism States, 247; United F.2d Carothers v. 153 attained, Con justice be that substantial Cir., 718; 5 161 F.2d and United States indictment found gress provided “No that Co., D.C., Empire Mfg. Cap v. Hat & * jury presented by a 47 F.Supp. 395. * ** insufficient, be shall deemed any imperfection reaching defect this conclusion we have of or not tend only, argument which shall not overlooked of form defendant’s 18 U.S. prejudice of defendant.” that rule which is claimed it Procedure, Congress provided that also 18 556. Rules of Criminal C.A. Federal § * * * 687, any appeal, provides hearing of following “On the which U.S.C.A. § criminal, or shall motion of defendant any civil the court .on examination of give strike judgment an court, prohibited without in our record before amendment allowed the entire errors, defects, or ex argument agree. regard to technical this we cannot case. With pro ceptions do not affect substan a which While rule introduced means parties.” tecting U.S.C.A. or against tial 28 immaterial a defendant allegations in an indictment irrelevant § re might prejudicial, which be it did not is as to whether test peal existing law. amendment to prejudiced an an indict- to whether a defense ment said point makes also Defendant originally it under an indictment as stood the indictment drawn first count of that the equally the amend- would available after statute, conspiracy 18 general under the made, any ment and whether evidence is agree proof 88, required U.S.C.A. § might equally have would be the defendant transport interstate commerce applicable indictment in one form to the knowledge that goods stolen as in United v. Faw- other. stolen, argues that were goods cett, Cir., page at supra, 115 F.2d 3 rendering is inconsistent because verdict count, guilty the verdict not on this ac identity In this case the jury found that the evidence must have questioned. cused not claimed prove was not sufficient to done defendant harm was had been stolen. knew that merchandise or was unaware charged, with which he was to this contention. (cid:127)crime We accede cannot protect appears jury may in this record to the conclusion (cid:127)enough have reached prosecution conspire for the another with the against him that defendant did simply defendants, The amendment cor but that he did cause same offense. other transported in interstate typographical goods the steno rected typed commerce, goods knowing that the had been the indictment. who grapher may, consistency did not the nature But be that as stolen. The amendment the n necessary. charged, charge a verdict is not Each different crime n offensefrom grand jury, regarded if that found principle separate within the indictment. Dunn United of Ex as to come so 189, States, 52 condemns Bain, supra, decision 356, A.L.R. indictment so L.Ed. the alteration judgment District Court effectuated than more does nothing abiding historic rule son- affirmed. idem cases ans.

LINDLEY, Judge agree (concurring). District af- should be firmed. statutory provision Of course insufficient indictment shall be deemed MINTON, Judge, (dissenting). Circuit reasoii of defect in matter form splendid example This case ais of the old prejudice only, tend which shall not adage that hard bad cases make law. From defendant, grants 18 U.S.C.A. § record, appear it would that this de power ignore only formal *4 fendant was guilty. rights His substantial imperfections. intent its fur- To extend violated, have not but been substantial vio man- ther would violate the constitutional lence proposition a done to law that per- that “no date Fifth Amendment of the important long to me seems as as our Con capital, son be answer for a shall to provides stitution charged that one can be crime, or otherwise infamous unless on a only with an crime

presentation infamous indictment. or indictment of a Grand An product indictment is the under oath Jury.” Congress The act of that providing * * * grand jury. Only grand jury a a can any appeal hearing “on the * * * return parte an indictment. From Ex shall give 1, L.Ed until regard without errors to technical promulgation of the Federal Rules of rights which do not affect the Procedure,1 Criminal it had parties,” been the law of the 28 U.S.C.A. must § that an indictment could not be amended in interpreted likewise be to authorize the body any thereof for ignore do only court to To formal or technical reason. so was to defects, make the indictment something for to it to extend include the fur- other than the work of permit jury. power ther to amendment of an in- When the Federal Rules of Criminal Pro dictment in matter of substance would adopted, Supreme cedure were against pro- offend the same constitutional provided in then, 7(d) Rule necessarily, surplusage that in It follows that vision. an might out, indictment amendment, stricken proper, must if have been only defendant, motion purely character; in there formal de- otherwise by putting position waiving him in the fendant’s constitutional have not provision constitutional that preserved. he could charged only by the indictment aof Here one count named correctly defend- that he had by getting the Denny, Kenny. ant as other as He was court to strike indict arrested under the included in name Count motion, estopped ment on his himself from I, Denny, and then moved abatement of raising that the indictment had on the II, ground Count that true name been amended. Denny Keith was Gordon Gordon Until this rule effective, became Kenny. Government, by Keith verified Bain had forbidden the amendment of agreed defendant’s pleading state- indictment in thereof fact, saying correctly that reason, without resubmission to named in I and Count Count that II In that surplusage that typist’s inadvertantly from a error arose attempted stricken from the in- typewriter. K D on striking her instead dictment. permitted to be cor- This error me, This in view rected. seems As majority I understand the opinion, it correctly fact that named in holds that amendment the body count and arrested the first under that indictment may be made toas formal mat- name, Judge announced, as has ters, Kerner a charging and that the of the defend- correction, prejudiced formal purely ant in the by the slightest degree. “Kenny” not the It name when his name “Denny”- following

1 18 U.S.C.A. section 687. jurisdic- destroys the court’s only a amendment' it was matter; formal is mere Surely, nothing technical the tion. there is striking of error —a mere typographical simple fundamenta! about that. as This typewriter. wrong key on the Jurisdiction jurisprudence anything can be. occurred mistake explanation how the matter me, make not, seems does agree I the Federal that Rule the defend- gave formal. The indictment not re- does Rules Criminal Procedure A defend- was not his. that ant name peal think it modi- existing law. do matter. formal ant’s mere name not a existing permitting fies law Government It is one of facts surplusage, as to if de- only is, prove, that action. fendant the onus such assumes name of the prisoner is the at the bar my opinion, by amending indict- indictment. thereof, especially ment in such majority opinion states name, material as the defendant’s must not formal which Government Government indictment and vitiated that the de- prove. plain me It seems destroyed jurisdiction. the court’s of form. not a matter fendant’s name is open Government after course *5 to the defendant’s Even if the as error returned with the this indictment been occurring matter of form name were a was therein to resubmit the case to error indictment, under the the still of the Otherwise, grand jury. not the the it is parte such authority Ex of jury. is the indictment by amendment. The be corrected could not indictment court and district the parte Bain Rule only modification of Ex attorney. If the court and district at- the said, which, provides that 7(d) as I have torney may such amend indictments vital may on the motion surplusage be stricken change completely as matters the defend- to of the defendant. name, may they what amendments ant’s would draw not we the the did make? Where The instant case amendment Supreme the Court line? Rule and was not made not involve drawn, Indeed, place only it at it could drew the the motion of the defendant. pertained as the stage this was amendment the earliest the defendant at matter, formal, the technical where appropriate times case all thereafter and at of the constitutional onus the violation challenged the the afforded upon placed facts, way procedure defend- pointed could Government by ant. to correction of the error resubmission But Government opinion upon majority relies United amendment, course, chose another al., Fawcett et 115 F.2d Cir.; parte to me condemned which seems did In that amend case Bain. by adding “otherwise the indictment known Leo Wilson” to the name the defend- as legisla- State courts and action case, ant, Nelson. In Harry this doubtful for the amendment of providing

tures charged, defendant was at least the before is of concern no to us. indictments amendment, own attempted legislate his to and Congress has I Harry Nelson. take it it would have in which technical errors that the manner proved sufficient if the Government rights been do not effect Furthermore, Harry was Nelson. appeal. that he be treated on 18 U. defendant objection pre- was not in that I admit that the substantial S.C.A. § time, possible at the earliest to sented defendant shown were opportunity case. An violated, instant deny was have case resubmit the was of an Faw- afforded Government Such action the not technical. thereof is was based largely That destroys case that it the in- case. lethal cett court is so “* proposition that: upon for as basis the court’s further dictment objection no to the addi- words, Supreme raised In other defendant procedure. at Leo Wilson’ known as tion ‘otherwise Bain) that such (Ex ruled 67:3 requested government the time the indictment; no change of the name

objection was made his entry of at the time throughout plea guilty, fact objection raised the whole case addition, nor identity of ever raised as to defendant. The close raised and first at the time a motion in arrest all evidence judgment.” Fawcett et States v. United al., supra, pages at 115 F.2d ob- In that court said that the case the jection late, and it further came too merely formal. added present

Neither in the instant just case. what defendant did Here the the court in Fawcett case said should done, have been did it when it should Furthermore, have been done. defend- ant charged by own here never *6 name, except by amendment. would reverse the only.

WOODS, Acting Housing Expediter, v.

BOBBITT.

No. 5653. Appeals, Circuit Court of Fourth Circuit. Jan.