Stewart v. United States

• Decision Date: 22 May 1968
• Docket Number: No. 19044.,19044.
• Parties: Robert Allison STEWART, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

395 F.2d 484 (1968)

Robert Allison STEWART, Appellant, v. UNITED STATES of America, Appellee.

No. 19044.

United States Court of Appeals Eighth Circuit.

May 22, 1968.

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Martin D. Hill, Dubuque, Iowa, for appellant.

Steve Turner, Asst. U. S. Atty., Sioux City, Iowa, for appellee, Gene R. Krekel, Asst. U. S. Atty., on the brief.

Before MEHAFFY, GIBSON and HEANEY, Circuit Judges.

MEHAFFY, Circuit Judge.

Robert Allison Stewart, hereinafter referred to as defendant, was convicted by trial to a jury for violation of 18 U.S.C. § 2312, commonly called the Dyer Act, for the transportation of a Cessna aircraft in interstate commerce from Sarasota, Florida to Dubuque, Iowa, knowing the same had been stolen.¹ The assignments of error on appeal — seven in all — involve the validity of the indictment by reason of an amendment thereto made by the court in correcting a clerical error in the date of the crime; the court's charge to the jury and its refusal to give certain of defendant's requested instructions; and the court's refusal to allow defendant to view the grand jury testimony.

Summarized briefly, the facts reveal that on June 20, 1967 defendant, using the name "Don Perry," made arrangements to rent an airplane from J&J Aircraft of Sarasota, Florida for use the following morning for the alleged purpose of flying to Key West, Florida to take some pictures with the agreement that he would return the plane to Sarasota by noon. He checked the plane out the next morning, June 21, 1967, and he and a friend, a Lieutenant Jacobson, flew instead to Birmingham, Alabama. He admitted at the trial that when he made arrangements to rent the plane he planned to go to Alabama and Texas and that it was never his intention to go to Key West, his explanation for this misrepresentation being that he and Lieutenant Jacobson were short of funds and would have been unable to advance the large deposit which he thought would be required for the out-of-state trip he actually intended and, further, he was afraid that the truth might result in a closer check of his credentials and disclose his past criminal record.

Stewart and Lieutenant Jacobson remained in Birmingham, Alabama from June 21 until June 27. On June 23, the president of J&J Aircraft received a telephone call from a person who said he was Don Perry and requested permission to keep the plane to make a three-day trip to Jacksonville. He was instructed to return the plane immediately — to have it back in Sarasota by noon that very day. It was not returned, however, and on June 27 the company received a call from a person who identified himself as a Mr. Worthman of New Orleans, who advised that Mr. Perry was flying from Tallahassee to Sarasota. The defendant did not go to Sarasota, but, by his own admission, flew from Birmingham to St. Louis, Missouri, then to Kansas City, Missouri, Council Bluffs, Iowa and Des Moines, Iowa, before his arrival in Dubuque, Iowa, where he was ultimately arrested on July 15, 1967. The jury did not accept defendant's explanation which was centered on his assertion that he always intended to return the plane, and that his various trips around the country were for the purpose of borrowing money from friends or obtaining employment to pay for the plane rental upon his return. He used different aliases at different places and a credit card under another name for service, repairs, etc. for the plane.

The Indictment.

The original indictment charged the defendant with having committed the crime on or about July 21, 1967. The date of July 21, 1967 was clearly a typographical error, inasmuch as all of the evidence before the grand jury reflected commission of the crime on June 21, 1967, and, moreover, defendant was arrested on July 15, 1967, and from that time on was held in jail due to inability to make bond. The question for resolution is whether under these facts the trial court's action in correcting the date of the indictment in any way contravened the constitutional provisions concerning indictments which are contained in the Fifth and Sixth Amendments, or the settled federal rule prohibiting any change or amendment of a federal indictment unless the same is a matter of form. The amendment of a federal indictment always presents a serious issue by reason of the Fifth Amendment requirement of a presentment or indictment by a grand jury, and the Sixth Amendment requirement that an accused shall enjoy the right to be informed of the nature and cause of the accusation. Because of the constitutional provisions mentioned, it has become settled law in the federal courts that an indictment may not be amended except by resubmission to the grand jury unless the change is merely a matter of form. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L. Ed.2d 252 (1960); and Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).

It was held in Stirone that a criminal charge may not be broadened except by the grand jury itself. In that case, Mr. Justice Black, speaking for a unanimous court, said:

"The Bain case, which has never been disapproved, stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him." 361 U.S. at 217, 80 S.Ct. at 273.

In the later Russell case, the Court recognized the precedential validity of both Bain and Stirone in holding that an indictment must contain an averment identifying the subject under inquiry. The Court held that the indictment in the Russell case did not sufficiently apprise the defendant "of what he must be prepared to meet." This opinion contains an interesting recitation of the background for our constitutional provisions which afford protection for the accused, tracing the development of the common law, going back to the Assize of Clarendon in 1166. It points out that for many years the federal courts were guided solely by the common law and that it was not until the statute of 1872 (Rev.Stat. § 1025, 18 U.S.C. § 556 1940 ed.) that this country drifted away from the earlier technical and more formal pleading. This statute was subsequently repealed, but its substance is now contained in Fed.R.Crim.P. 52(a) and in Fed.R.Crim.P. 7(c).²

We have no difficulty in holding that the amendment correcting the time of the offense in the indictment did not in any manner deprive defendant of his Fifth and Sixth Amendment rights. He was indicted by a grand jury for the transportation of a stolen Cessna aircraft in interstate commerce from Sarasota, Florida to Dubuque, Iowa, knowing the same had been stolen, and was tried for that offense. The date is not an essential element of the crime and the changing thereof did no more than correct a typographical error and in no wise impeded the defendant in the apprisal of the nature and charge of the accusation. The indictment precisely described the illegal interstate transportation of a "red and white Cessna 172 airplane," knowing the same to have been stolen. Thus, defendant was provided with a precise description of the charge against him which enabled him to make a defense and sufficed to avail him of the judgment thereon as protection against a further prosecution for the same cause. The fact that he was arrested on July 15, 1967 and was in custody on July 21 is conclusive proof that he did not and could not have committed the offense on July 21, and this would be a bar to any attempted prosecution for the same offense on that date. Defendant was at all times fully aware of the actual date of the commission of the alleged wrongful act and could not have been prejudiced in any substantial rights by the amendment, since the mere correction of the date did not in any manner broaden the charge.

Time is not of the essence in connection with the charge for this crime, and the date in an indictment such as this was not a material allegation inasmuch as the time of the theft is not descriptive of the offense and need not be precisely proven other than to prove it occurred within the limitation period. This more modern rule has long existed in the federal courts. See and compare Dean Rubber Mfg. Co. v. United States, 356 F.2d 161, 168 (8th Cir. 1966); Huffman v. Sigler, 352 F.2d 370 (8th Cir. 1965); Whiteside v. United States, 346 F.2d 500 (8th Cir. 1965); Vincent v. United States, 337 F.2d 891 (8th Cir. 1964); Brilliant v. United States, 297 F.2d 385, 390 (8th Cir. 1962), cert. denied, 369 U.S. 871, 82 S.Ct. 1140, 8 L.Ed.2d 275 (1962); Alexander v. United States, 271 F.2d 140 (8th Cir. 1959); Berg v. United States, 176 F.2d 122, 126 (9th Cir. 1949), cert. denied, 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537 (1949); Hale v. United States, 149 F.2d 401, 403 (5th Cir. 1945), cert. denied, 326 U.S. 732, 66 S.Ct. 40, 90 L.Ed. 436 (1945).

By reason of our constitutional provisions, an indictment cannot be amended in a substantial material way so as to broaden or change the charge or to prejudice an accused by failing to fully apprise him of the charge against him, but it would be wholly impractical and not required by any rule of law to vitiate this indictment by reason of the correction of a clerical error that was not of the essence in connection with the charge of the commission of the crime. From the cases cited, it appears that this variance between the indictment and the proof would not have been fatal had the indictment not been amended, and that there is valid authority to the effect that the defendant might have been tried on the original indictment with the erroneous date. In Gregory v. United States, 364 F.2d 210, 213 (10th Cir. 1966), cert. denied, 385 U.S. 962, 87 S.Ct. 405, 17 L.Ed.2d 307 (1966), which involved a variance in the complaint and the indictment with regard to the date of the commission of the alleged offense, the court said in affirming the conviction:

"The fourth objection directs itself

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