United States v. Fawcett

• Citation: 132 ALR 404,115 F.2d 764
• Decision Date: 02 December 1940
• Docket Number: 7399.,No. 7396,7396
• Parties: UNITED STATES v. FAWCETT et al. (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

132 ALR 404, 115 F.2d 764 (1940)

UNITED STATES v. FAWCETT et al. (two cases).

Nos. 7396, 7399.

Circuit Court of Appeals, Third Circuit.

October 23, 1940.

Rehearing Denied December 2, 1940.

Samuel C. Sonnenfeld and B. D. Oliensis, both of Philadelphia, Pa., for appellants.

William F. Smith, Acting U. S. Atty., and W. Orvyl Schalick, Asst. U. S. Atty., both of Trenton, N. J., for appellee.

Before JONES, and GOODRICH, Circuit Judges, and GANEY, District Judge.

GANEY, District Judge.

The defendants, Robert Fawcett and Harry Nelson, were indicted on two counts. The first count of the indictment charged that on or about the 10th day of August, 1939 at Bellmawr in the District of New Jersey, the defendants did knowingly, unlawfully and feloniously sell to one Ellis Anderson, with the intention that the same should be uttered, published and passed as true and genuine, forty counterfeit obligations of the United States. The second count charged that, at the same time and place the defendants did possess the same forty counterfeit obligations. The indictment as returned by the Grand Jury of the District of New Jersey on October 10, 1939 charged "Robert Fawcett and Harry Nelson" as above indicated. The indictment was amended by order of court on December 15, 1939, with respect to the name "Harry Nelson", so as to make it read "Harry Nelson otherwise known as Leo Wilson". On the same day the defendants plead "not guilty", and on the 4th of March, 1940 were tried together. On the following day a verdict of guilty was rendered on both counts as to both defendants. The defendants moved in arrest of judgment and for a new trial, alleging that certain prejudicial errors led to their conviction. Upon denial of these motions, appeal was taken to this court.

The argument most seriously pressed upon us for consideration is that the amendment allowed by the District Court making the addition, "otherwise known as Leo Wilson" is fatally defective. At common law it was beyond question that in the English courts the body of an indictment could not be amended. The reasoning behind this rule 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; Rex v. Wilkes, 4 Burrow 2527, Hawkins Pleas to the Crown Bk. 2, C. 25, Sec. 97. This doctrine has been followed in the Federal courts and whenever an amendment of substance has been made in the body of an indictment, the courts have been quick to hold it violative of the Fifth Amendment of the Constitution, providing that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury"; Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Dodge v. United States, 2 Cir., 258 F. 300; Stewart v. United States, 9 Cir., 12 F.2d 524. This is true even if the defendant agrees that the facts stipulated should have the same effect as if set forth in the indictment, United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076. However, an examination of the cases will show that the prohibition has been directed against amendments to the body of an indictment, and no case has been found where our courts have ruled directly on the question of whether the change in name of the defendant, by the amendment of the indictment to that effect, before plea is entered, and where no question of the identity of the defendant is involved, would be such a substantive change as would be violative of the Fifth Amendment.

In various states, such as New York, Pennsylvania, New Jersey, Virginia, etc., statutes have permitted amendments to indictments which are merely formal, and which in no wise affect or prejudice the rights of the defendant. Statutes providing for the amendment of the name of a defendant are common among states permitting such amendments. These statutes were resorted to in the various states to avoid the delay and inconvenience of the roundabout method of the common law system of criminal procedure. For when a person who was indicted put in a plea of abatement on the ground of misnomer and such a plea was found to be true, the result was that he either had to be discharged or proceedings against him for the alleged crime by the name designated in his plea had to be begun de novo; 1 American Criminal Law, Sec. 537; Hale's P.C. 176, 238.

Congress in all probability motivated by the same desire as the States to relieve against formal technicalities both on the civil and criminal side of the law enacted two remedial statutes.

In 18 U.S.C.A. § 556, it was provided that "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". Likewise in Sec. 269 of the Judicial Code, 28 U. S.C.A. § 391, there is provided "on the hearing of any appeal, certiorari, writ of error, or motion for a new trial, 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". These statutes, we think, evidence the intention of Congress to eliminate the effect of all purely technical and formal defects which in no wise prejudice a defendant, or affect his substantial rights, on the theory that, in the progress of the law, narrow formalism should be eliminated and only the attainment of substantial justice sought. In the instant case the defendant raised no objection to the addition "otherwise known as Leo Wilson" at the time the government requested the change of the name in the indictment; no objection was made by the defendant to the change at the time of the entry of his plea of not guilty, and in fact throughout the whole case no objection was raised by the defendant to this addition, nor was any question ever raised as to the identity of the defendant. The question was only raised and for the first time at the close of all the evidence by a motion in arrest of judgment.

The test as to whether the 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; State v. Moyer, 76 Or. 396, 149 P. 84. As the court says in Lasure v. State, 19 Ohio St. 43, at page 50, "Blackstone (vol. IV, marginal paging 302) thus defines it: `An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury.' An indictment, then, is an accusation of a person of crime. It is an accusation against a person, and not against a name. A name is not of the substance of an indictment. And a person may be well indicted, without the mention of any name, and designating him as a person whose name is to the grand jurors unknown".

Since the defendant was in no wise misled or prejudiced in any degree whatever by the change and no substantive right affected thereby, it is clear...