165 F.2d 668 (7th Cir. 1947), 9419, United States v. Denny

Docket Nº:9419.
Citation:165 F.2d 668
Party Name:UNITED STATES v. DENNY.
Case Date:December 30, 1947
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 668

165 F.2d 668 (7th Cir. 1947)

UNITED STATES

v.

DENNY.

No. 9419.

United States Court of Appeals, Seventh Circuit.

December 30, 1947

James J. Clark, of Hammond, Ind., for appellant.

Alexander M. Campbell, U.S. Atty., of Fort Wayne, Ind., James E. Keating, Asst. U.S. Atty., of South Bend, Ind., T. Vincent Quinn, Asst. Atty. Gen., and Robert S. Erdahl, Atty., Department of Justice, of Washington, D.C., for appellee.

Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge.

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

Page 669

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 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 insetting 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...

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