Smiley v. United States, 12375.

• Decision Date: 19 January 1951
• Docket Number: No. 12375.,12375.
• Parties: SMILEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

186 F.2d 903 (1951)

SMILEY v. UNITED STATES.

No. 12375.

United States Court of Appeals Ninth Circuit.

January 19, 1951.

Otto Christensen, Los Angeles, Cal., Robert A. Neeb, Jr., Beverly Hills, Cal., for appellant.

Ernest A. Tolin, U. S. Atty., Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.

ORR, Circuit Judge.

This court has rarely, if ever, been asked to entertain a proceeding of this character. We do not wish to be understood as giving it our stamp of approval as a regular practice because such a practice would be sanctioning one more step in the almost interminable delays which attend some criminal proceedings. Because of the contention that the crime charged in the indictment was separate and distinct from that upon which appellant was tried and convicted and that appellant was not aware of the variance until a very late date, we deem it expedient to entertain the supplemental petition. Here we have a case where a conviction was had in the trial court, an appeal taken to this circuit court, the judgment affirmed, a rehearing denied; a petition to the Supreme Court of the United States for certiorari; the petition denied; a rehearing asked and denied, and now a supplemental petition to this court for rehearing and motion to remand.

The petition for rehearing presented to the Supreme Court of the United States asserted, for the first time, the contention now made to us in the supplemental petition. Appellant Smiley was convicted in the District Court of the United States, Southern District of California, Central Division, of fraudulently representing himself as a citizen of the United States. He was convicted on three counts. On appeal we reversed as to two and sustained the third. 181 F.2d 505.

The third count charged the misrepresentation of citizenship to have been made to one Siu, a deputy sheriff of Los Angeles, California. The evidence disclosed that the false statements with which appellant was charged were made in the course of a booking operation at the Sheriff's office, after an arrest. The answers were recorded on a form sheet provided for that purpose. It appears that the lower portion of the form which contains the false statement was filled in by Deputy Sheriff Hopkins, not Siu and that Siu did not hear the false answers. Hence, it is argued that a fatal variance exists between the allegation and proof.

Deputy Sheriff Siu made an affidavit after trial as to the circumstances.

At the trial counsel for appellant relied on the theory that no crime had been committed because the person to whom the false misrepresentations were made was not one having a legal right to ask the questions in furtherance of official authority and authorized by a law which imposed a duty on the questioned individual to answer. We rejected this theory but mention it in connection with our required inquiry as to whether the alleged variance is material and of a character which could have misled the defendant at the trial and thus deprived him of a substantial right and the further inquiry as to whether appellant has been protected against another prosecution for the same offense. The true inquiry is not whether there has been a variance but was it such as to affect the substantial rights of the accused. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314; United States v. Ragen, 314 U.S. 513, 526, 62 S.Ct. 374, 86 L.Ed. 383. "No variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial." Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, 17 S.Ct. 661, 665, 41 L.Ed. 1101. In a criminal case there must "be added the further requisite that the...