UNITED STATES v. DENNY, 165 F.2d 668

KERNER, Circuit Judge. The. indictment in this case contained three counts. Nothing need be said of the third count since defendant was not mentioned therein. The first count charged defendant and five others with conspiring to transport in interstate commerce meat and butter, knowing the same had theretofore been stolen. Defendant was found not guilty on this count. The second count, based on 18 U.S.C.A. § 415, involved the same parties, except that the name of Gordon Keith Denny appeared therein as Gordon Keith Kenny.

It charged that the persons named therein caused meat and butter of the value of $10,000 to be transported from Chicago, Illinois, to Hammond, Indiana, knowing the said merchandise had theretofore been stolen. On this count the jury returned a verdict of guilty, judgment was rendered thereon and from that judgment defendant has appealed.

The error assigned is that the trial court permitted the district attorney to change the name in the second count of the indictment from “Gordon Keith Kenny” to “Gordon Keith Denny.” The record discloses that after the return of the indictment and before arraignment defendant moved for dismissal and abatement of this count on the ground that his true name was Gordon Keith Denny and not Gordon Keith Kenny. The government thereupon filed its verified petition, praying that it be permitted to amend this count of the indictment.

In the petition it was alleged “that the Gordon Keith Kenny referred to in the second count of the indictment herein actually bears the name of Gordon Keith Denny and that the reference to the person the Grand Jury indicted as Gordon Keith Kenny was a stenographic mistake, the stenographer who was drawing the indictment inadvertently striking the letter ‘K instead of the letter ‘D’, and that the person the Grand Jury was indicting for the offense set forth in the second count of the indictment is one and the same person as the Gordon Keith Denny referred to in Count I of the said indictment.” The court overruled defendant’s motion in abatement and granted leave to amend.

The count was thereupon amended by striking therefrom the name “Gordon Keith Kenny” and inserting in its place the name “Gordon Keith Denny.” Challenging the amended indictment, defendant moved to dismiss on the ground that the indictment could not be amended. This motion the court overruled. On this appeal the ground taken by defendant is that after an indictment has been returned by a grand jury and filed with the court, no change can be made in the body of the indictment. It is unquestionably true that the common law long ago recognized that the body of an indictment could not be amended.

The reasoning behind this rule, as stated by the court in the case of United States v. Fawcett, 3 Cir., 115 F.2d 764, 766, 132 A.L.R. 404, was “that the finding of a grand jury was upon oath and, depending upon this fact amongst others for its validity, could not be amended by the court or the presiding officer in any manner of substance without the concurrence of the grand jury which presented it.” And it has been held that whenever an indictment requires amendment of substance, it must be sent back for that purpose to the grand jury. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849.

The district attorney concedes this rule. He asserts, however, that a mere misnomer by an initial letter of the last name of the accused in the indictment is not a matter of substance within the condemnation of Ex Parte Bain, supra. The question is, therefore, whether an indictment can be amended in the situation here disclosed. An indictment is a written accusation or charge of crime in which the party accused should be fully apprised of the nature of the offense charged in order that he may come into court prepared for his defense.

True, it is difficult to express in exact language, applicable to every case, what constitutes the substance of an indictment and what is formal, but all courts concede that the body of the indictment must set forth all the ingredients of the offense.

This is the substance of the charge, or as is said in 27 Am.Jur. p. 677, “the statement of every fact which must be proved to make the act complained of a crime is matter of substance, and * * * all else * * * is formal.” Many jurisdictions have adopted statutes providing that no indictment shall be abated for any misnomer of the accused, and that the court may, in case of misnomer appearing before or in the course of a trial, cause the indictment to be amended according to the fact.

Under these statutes the courts have held that where no change of identity is involved, the defect is one of form. 7 A.L.R. 1520 and 68 A.L.R. 929.

In line with the progressive thought enunciated, by these statutes and for the purpose of eliminating the effect of formal defects which in no wise prejudice a defendant or affect his substantial rights, on the theory that in the development of the administration of justice narrow technical formalism should be eliminated to the end that substantial justice be attained, Congress provided that “No indictment found and presented by a grand jury * * * shall be deemed insufficient, * * * by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.” 18 U.S.

C.A. § 556. Congress also provided that “On the hearing of any appeal, * * * in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” 28 U.S.C.A. § 391.

The test as to whether a defendant is prejudiced by an amendment to an indictment has been said to be whether a defense under an indictment as it originally stood would be equally available after the amendment is made, and whether any evidence the defendant might have would be equally applicable to the indictment in the one form as in the other. United States v. Fawcett, 3 Cir., supra, 115 F.2d at page 767. In this case the identity of the accused is not questioned.

It is not claimed that any harm was done defendant by the amendment or that he was unaware of the •crime with which he was charged, and •enough appears in this record to protect him against another prosecution for the same offense. The amendment simply corrected a typographical error by the stenographer who had typed the indictment.

The amendment did not change the nature ■of the crime charged, or charge a different ■offense from that found by the grand jury, so as to come within the principle of Ex parte Bain, supra, which decision condemns the alteration of an indictment so as to charge a different offense from that found by the grand jury; the amendment had nothing to do with the question of his guilt or with the evidence which should be sufficient to warrant conviction, nor did it in any manner prejudice his substantial rights. We conclude that the amendment was only one of form, and that it was properly allowed. Cf. Capriola v.

United States, 7 Cir., 61 F.2d 5; United States v. Fawcett, supra; United States v. Angelo, 3 Cir., 153 F.2d 247; Carothers v. United States, 5 Cir., 161 F.2d 718; and United States v. Empire Hat & Cap Mfg. Co., D.C., 47 F.Supp. 395. In reaching this conclusion we have not overlooked defendant’s argument in which it is claimed that rule 7(

d) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. following § 687, which provides that the court .on motion of the defendant may strike surplusage from the indictment, prohibited the amendment allowed in our case. With this argument we cannot agree. While this rule introduced a means of protecting a defendant against immaterial or irrelevant allegations in an indictment which might be prejudicial, it did not repeal the existing law.

Defendant also makes the point that the first count of the indictment drawn under the general conspiracy statute, 18 U.S.C.A. § 88, required proof of an agreement to transport in interstate commerce stolen goods and of knowledge that the goods were stolen, and argues that the verdict is inconsistent because in rendering the verdict of not guilty on this count, the jury must have found that the evidence was not sufficient to prove that defendant knew that the merchandise had been stolen. We cannot accede to this contention.

The jury may have reached the conclusion that defendant did not conspire with the other defendants, but that he did cause the goods to be transported in interstate commerce, knowing that the goods had been stolen. But be that as it may, consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161. The judgment of the District Court is affirmed.