13 Syracuse L Rev 14

Syracuse Law Review 13 Syracuse L.
Rev. (1961-1962)
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Citation: 13 Syracuse L. Rev. 14 1961-1962
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INDICTMENT AND INFORMATION IN FEDERAL CRIMINAL

PROCEDUREt
LESTER B. ORFIELD*
Rule 7 of the Federal Rules of Criminal Procedure, entitled "The

Indictment and the Information," provides as follows:
(a) USE OF INDICTMENT OR INFORMATION. An offense which may
be punished by death shall be prosecuted by indictment. An offense which
may be punished by imprisonment for a term exceeding one year or at hard
labor shall be prosecuted by indictment or, if indictment is waived, it may be
prosecuted by information. Any other offense may be prosecuted by indictment
or by information. An information may be filed without leave of court.
(b) WAIVER OF INDICTMENT. An offense which may be punished by
imprisonment for a term exceeding one year or at hard labor may be prosecuted
by information if the defendant, after he has been advised of the nature of
the charge and of his rights, waives in open court prosecution by indictment.
(c) NATURE AND CONTENTS. The indictment or the information
shall be a plain, concise and definite written statement of the essential facts
constituting the offense charged. It shall be signed by the attorney for the
government. It need not contain a formal commencement, a formal conclusion
or any other matter not necessary to such statement. Allegations made in one
count may be incorporated by reference in another count. It may be alleged
in a single count that the means by which the defendant committed the offense
are unknown or that he committed it by one or more specified means. The
indictment or information shall state for each count the official or customary
citation of the statute, rule, regulation or other provision of law which the
defendant is alleged therein to have violated. Error in the citation or its
omission shall not be ground for dismissal of the indictment or information
or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
(d) SURPLUSAGE. The court on motion of the defendant may strike
surplusage from the indictment or information.
(e) AMENDMENT OF INFORMATION. The court may permit an information to be amended at any time before verdict or finding if no additional
or different offense is charged and if substantial rights of the defendant are
not prejudiced.
(f) BILL OF PARTICULARS. The court for cause may direct the filing
of a bill of particulars. A motion for a bill of particulars may be made only
within ten days after arraignment or at such other time before or after
arraignment as may be prescribed by rule or order. A bill of particulars may be
amended at any time subject to such conditions as justice requires.
I. HISTORY OF DRAFTING OF RuLE
The first draft of the Federal Rules of Criminal Procedure, dated

September 8, 1941, provided in Rule 7 (a) entitled "Indictment; Waiver"
The written accusation of a capital offense shall be an indictment. The
written accusation of a non-capital but infamous offense shall likewise be an
indictment, unless the person against whom the accusation is to be filed
informs the court either orally in open court or by a written communication
that he waives accusation by indictment and consents to the filing of an information or a complaint against him. In case of such waiver the attorney
for the government may by leave of court proceed against the accused by
t Professor Orfield's article will be published in three parts. The first, appearing in
this issue, deals with the history of the drafting of Rule 7; the second with federal
procedure prior to Rule 7; and the last with Rule 7 as interpreted in the decisions.
* Professor of Law, Indiana University.
FEDERAL INDICTMENT AND INFORMATION

information or complaint. Upon the filing of the information or complaint the
court shall have as complete jurisdiction as if the proceeding had been by
indictment. The written accusation of an offense which is not infamous may be
by an indictment, an information, or a complaint.
Rule 7 (a) (2) entitled "Information and Complaint; Signature and

Approval" provided:
When the written accusation is an information it shall be signed by the
United States Attorney. When the written accusation is a complaint the person
who makes it shall sign and verify it. It shall then be subject to approval by
the United States Attorney. If he approves the complaint, he shall indorse it
with the word "approved" over his signature.
Waiver of indictment was favored by many groups and persons who

wrote to the Advisory Committee: the Committees for the District of South
Dakota, Kansas, District of Columbia, Western District of Arkansas, Western
District of Oklahoma, District of Colorado, Cincinnati Bar Association,
Federal Judge Picard, United States Attorneys Alexander M. Campbell of
Indiana and Tobias E. Diamond of the Northern District of Iowa, Frank
W. Grinnell of Boston, Massachusetts, Joe C. Barrett of Arkansas, and
Frederick F. Faville of Iowa. Thurston Greene of New York, counsel for
the New York Association of Grand Jurors was opposed. Judge Nevin
recommended great caution in making any change. Nathan April of New
York approved of waiver under the following conditions: (a) non-capital
offenses; (b) filing of information that is specific enough for the court to
determine a plea of double jeopardy if it should later arise; (c) that the
waiver be written, signed by defendant, and made on advice of counsel of
defendant's selection.
Rule 8 (a) entitled "The Written Accusation" provided:
The written accusation shall be a plain and concise statement of (1) the
specifications of the court's jurisdiction, (2) the sources of the written accusation,
namely the grand jury or the United States Attorney, (3) the name of the
defendant, (4) the time of the alleged commission of the offense, (5) the place
of the alleged commission of the offense, (6) the act or acts or the omission
of the legal duty by which the defendant is alleged to have committed the
offense, (7) the criminal intent if any with which the defendant is alleged to
have committed the offense, (8) the name of the person injured, if anyone,
by the alleged offense, (9) any other fact or allegation which may be necessary
because of special requirements, statutory or otherwise, for notice to the defendant and to the court of the act and offense of which the defendant is accused,
and (10) the statute, by its official or customary citation, which the defendant
is alleged to have violated. If the name of the defendant or of the injured
person is unknown to the grand jury or to the United States Attorney, the
accusation shall so state. It shall not be necessary to use in the accusation the
words 'unlawfully', 'feloniously', 'wilfully', 'maliciously', 'negligently', or similar
expressions, unless each characterization is used in the statute defining the
offense, and in that event it shall be sufficient if such terms are used once and
without repetition in the same accusation or count. No formal or additional
allegations are required to be contained in the written accusation. A bill of
particulars may be supplied by the government voluntarily, or by order of the
court if additional details are necessary to give notice to the government of the
defense which the defendant is asserting. The written accusation or the defendant's motion to dismiss because of the defense stated therein as provided in
paragraph (c) of this rule, and not the bill of particulars, shall control the
evidence and the proof which the government and the defendant respectively
SYRACUSE LAW REVIEW

permit. The court may at any time cause the written accusation or the bill
of particulars of the government or of the defendant to be amended in respect
to any defect or omission, or to conform to the evidence.
The Committee for the Southern District of Florida suggested specific

short forms of indictment for bribery, murder, smuggling, violation of the
Mann Act, and conspiracy to use the mails to defraud. Short forms should
be supplemented by bills of particulars. Names of witnesses should not be
required to be indorsed on the indictment. Nathan April would have the
indictment be sufficiently specific so that former jeopardy could be pleaded
in later actions. Frederick F. Faville favored short form indictments as
in Iowa. At a meeting of the Judicial Conference of the Second Circuit
Henry W. Beer opposed short form indictments. The Committee for the
District of New Jersey favored short form indictments. Alexander M.
Campbell of Indiana suggested that bills of particulars are generally
dilatory pleadings which result in putting cases over from term to term.
The use of some sort of pre-trial conference might avoid such abuse. The
District of Colorado Committee suggested that motions for bills of particulars be allowed to be filed concurrently with the motion to dismiss, but that
the hearing allowed be postponed until after the motion to dismiss or
other preliminary matters have been disposed of.
The matters dealt with in Rules 7 and 8 of the first draft were covered
in Rule 30 of the second draft, dated January 12, 1942. Accusation of a
capital offense is by indictment. Accusation of other infamous offenses is
by indictment unless indictment is waived. Accusation of an offense which
is not infamous and which is not a petty offense is by indictment or information. Accusation of a petty offense is by information or by complaint.
Under Rule 30 (b) the "written accusation shall be a plain, concise and
definite statement of the essential facts which constitute the offense charged
against the accused." There need be no formal commencement or conclusion. Allegations may be incorporated by reference to allegations contained
in another count. Each count shall cite the statute violated, but omission
thereof shall not invalidate the accusation. Under Rule 30 (c) (1) the court
is authorized to strike from an accusation "a word or words which constitute
surplusage, especially if the surplusage may be prejudicial to the defendant,
confusing to the jury or otherwise harmful." Under Rule 30 (c) (2) the
court could amend an erroneous citation of the statute, and could grant
additional time. Under Rule 30 (c) (3) the court could amend the information at any time before trial, upon cause shown by the United States
Attorney, by adding a defendant or defendants. Under Rule 30 (d) the
court could dismiss an accusation upon motion of the United States Attorney, or after hearing evidence in support of the motion to dismiss or of
the written accusation. Under Rule 30 (e) there might be waiver of indictment in non-capital cases. But the defendant must inform the court both
in writing and in person that he is making a waiver on advice of counsel.
The court shall accept the waiver only if the defendant is fully aware of

his constitutional right and of the meaning and consequences of waiver.
The rule was silent as to bills of particulars.
Rule 30 of the third draft, dated March 4, 1942 made a number of
changes. Rule 30 (a) laid down definitions of written accusations, indictment, information and complaint. "The written accusation is a statement
by which a person is accused of having committed a specified criminal
offense and is brought before a judicial officer or court to answer to the
charge." Accusation of a petty offense was no longer confined to information or complaint. Under Rule 30 (b) entitled "Nature and Contents," the
accusation should state in each count the official or customary citation of
the statute, rule, regulation, or other legal provision which the accused is
alleged therein to have violated. If the citation is erroneous or omitted,
this may be called to the court's attention before or during trial, and the
court may direct that the error or omission be corrected, may grant additional time before further proceedings are taken, and may grant whatever
other relief is desirable. Under Rule 30 (c) (1) only the defendant could
move to strike surplusage. Under Rule 30 (c) (2) the court may permit the
information or complaint to be amended at any time except that an amendment adding a defendant may be made only before trial. Under Rule 30 (d)
the United States Attorney may enter a nolle prosequi provided that a
statement of reasons is filed with the court. The court may dismiss the
written accusation at any stage of the proceedings, either on the defendant's
or on its own motion. Under Rule 30 (e) the defendant may waive indictment in non-capital cases when he acts voluntarily and intelligently upon
advice of counsel. The waiver may be made by the defendant, and it may
be accepted by the court, at any time and at any place within the district.
It was pointed out during Advisory Committee discussion that trial by
jury could be waived in capital cases.
Rule 8 (a) (1) of the fourth draft, dated May 18, 1942, provided that
accusation of an offense which may be punished by death shall be by
indictment; of an offense which may be punished by imprisonment for a
term exceeding one year or by hard labor by indictment, or if indictment
is waived, by information. Accusation of any other offense may be by
indictment or by information. There was no provision as to complaint.
Rule 8 (a) (2) provided that the "indictment or information shall be a plain,
concise and definite statement of the essential facts which constitute the
offense charged." The word "written" did not appear. The former language as to use of the words "unlawfully," etc., was omitted. A new provision was inserted that it "may be alleged in a single count that the means
by which the accused committed the offense are unknown and that he
may have committed it in one or more of various specified ways." Error
in the citation of a statute or its omission shall not be ground for reversal
of a conviction if the proceeding was in fact supported by a statute, and
if the error or omission does not appear to have been made with intent to
SYRACUSE LAW REVIEW

mislead the accused or if it did not mislead him to his prejudice. Rule
8 (a)(5) provided for the striking of surplusage from the indictment or
information on the motion of the defendant or on the court's own motion.
Rule 8 (b) (1) provided for waiver of indictment. After waiver "the United
States Attorney shall file an information." Under Rule 8 (b) (2) arraignment and plea upon the information then follow. Under Rule 8 (b) (3)
if an information charges an offense punishable by fine or by imprisonment
for not more than one year or both, the court may permit the information
to be amended at any time before verdict or finding of guilty or not guilty,
if no additional or different crime is charged and if substantial rights of
the defendant are not thereby prejudiced.
A draft, known as Preliminary Draft, dated May 1942, made but slight
changes. Under Rule 8 (a) (2) error in the citation of a statute or its
omission is not ground for dismissal of the indictment or for reversal of a
conviction if the proceeding was in fact supported by a statute, and if the
error or omission did not mislead the defendant to his prejudice. Under
Rule 8 (a) (8) only the defendant could move to strike out surplusage.
Under Rule 8 (b) a defendant represented by counsel could waive indictment except in capital cases. In such event the United States Attorney
may file an information or proceed by indictment. The draft was submitted to the Supreme Court for comment. The Court objected to the use
of the word "accusation" in Rule 8 (a) (1) as not a word of art and not
heretofore used in Anglo-American jurisprudence. A substitution was
suggested. The provision for waiver of indictment raised questions of
policy and possibly constitutionality, which should be the subject of annotation. One purpose of the rule, as the Court understood it, was to enable
a defendant to go to trial promptly in a division of the district where grand
juries sit infrequently. Would that not be possible under the rule permitting transfer to another division of the district? If so, are there other
reasons for the proposed rule allowing waiver of indictment?
The fifth draft, date June, 1942, in its Rule 8, made no change.
The sixth draft, dated Fall 1942, made a number of changes. Rule
7 (a), while still using the title "The Accusation in the Trial Court," did
not use the word "accusation" in the body of the rule. Instead it used the
words "indictment" and "information." This was in response to the suggestion of the Supreme Court. The Reporter pointed out that the sixth
amendment uses the word "accusation." Waiver of indictment was now
covered in subdivision (b) of the rule. The subdivision of the rule now
appeared in their final sequence of order, but no provision was made for
bills of particulars. The title of the rule now added the word "the," so
that it became, "The Indictment and the Information," to distinguish it
from the title of the chapter covering the present Rules 6, 7, 8, and 9, which
is entitled "Indictment and Information."
The First Preliminary Draft (Seventh Committee draft), dated May
1943, made a number of changes. Rule 8 (a) used the word "prosecuted"
instead of "charged" when referring to accusation by indictment or information. Rule 8 (b) provided: "An offense not punishable by death may be
prosecuted if the defendant, being represented by counsel, waives indictment in writing." Rule 8 (c) entitled "Signing and Filing of Information"
provided: "The Information shall be signed by the attorney for the government and may be filed only by cause of court." At the suggestion of Professor Lester B. Orfield, Rule 8 (d) on "Nature and Contents" provided
that the indictment or information be a written statement.
Commenting on Rule 8 (a) of the First Preliminary Draft, Judge
Albert L. Reeves of the Western District of Missouri saw no reason why
waiver of indictment should not be permitted in capital cases where the
defendant is represented by counsel.' The grand jury is really an approving
and no longer an inquiring body. Judge John B. Sanborn of the Eighth
Circuit would allow waiver in other than capital cases on a waiver in
writing by the defendant with leave of court. Some defendants do not
wish to be represented by counsel. Judge Xenophon Hicks of the Sixth
Circuit pointed out that "Rule 8 leaves out entirely the matter of presentation of offenses by the grand jury under its inquisitorial power. I have
always understood that federal grand jurors have inquisitorial power which
2
in many instances and under many circumstances is a wholesome power."
Thomas J. Morrissey, United States Attorney for the District of Colorado,
would require indictment as to offenses punished by life imprisonment.3
With respect to Rule 8 (b) Judge Curtis L. Waller of the Fifth Circuit
would permit a defendant who had waived counsel to waive the indictment
in writing.4 This would prevent delay. If counsel had to be appointed,
then counsel would be expected to be present at arraignment and sentence.
Judge C. C. Wyche of the Western District of South Carolina took a similar
position. 5 Joseph T. Votava, United States Attorney for the District of
Nebraska, would add to the rule the following language: "in open court
and after the defendant was advised by the court of his right to demand a
presentment of any charge against him by a grand jury."6 Judge Orie L.
Phillips of the Tenth Circuit stated that he was the first federal judge to
uphold waiver of indictment, having done so in 1923.7 The waiver should
be in open court. Judge Williams F. Smith of the District of New Jersey
would permit a waiver only if the defendant were informed of his rights
1. Comments, Recommendations, and Suggestions Received Concerning the Proposed
Federal Rules of Criminal Procedure 63 (1943).
2. 2 Comments, Recommendations, and Suggestions Received Concerning the Proposed Federal Rules of Criminal Procedure 361 (1953).
3. Id. at 362.
5. Id. at 66.
6. Supra note 4, at 67.

SYRACUSE LAW REVIEW
under the fifth amendment and of the nature of the charge.8 The Michigan
federal judges thought it impractical to require that the defendant have
counsel at this stage. The defendant is not as yet before the court. Provision for a public defender would be necessary. Joseph F. Deeb, United
States Attorney for the Western District of Michigan, made a similar suggestion. 9 Herbert S. Phillips, United States Attorney for the Southern
District of Florida, would omit the rule. The steps to secure a waiver by
the defendant would take so much time that an indictment might as well
be used. Moreover all felony cases should go to the grand jury because
this protects the United States Attorney from suspicion that he was influenced by matters outside the evidence. Wendell Berge, Assistant Attorney
General of the United States, suggested that the defendant should be informed of his rights under the fifth amendment; the waiver of indictment
should be physically annexed to the information; advice of counsel should
not be required as many defendants do not desire counsel.1 0
With respect to Rule 8 (c) Judges Reeves and Sanborn objected to the
requirement of obtaining leave of court to file an information." If permission to file must be obtained in open court then the United States
Attorney is at a disadvantage in making public the facts of an information.
The facts should be kept secret until after the arrest of the defendant.
Obtaining leave of court is a mere formality. The court should have no
discretion to refuse leave to file an information. Victor E. Anderson,
United States Attorney for the District of Minnesota, also opposed the
leave of court provision.' 2 The court usually knows little about the case.
Assistant Attorney General Wendell Berge also opposed the provision.
M. Neil Andrews, United States Attorney for the Northern District of
Georgia, suggested that the words "the Attorney for the government"
should be changed to "the United States Attorney or his Assistant" to
prevent a construction which would permit the filing of an information
representing any agency of the government without even the knowledge
or consent of the United States Attorney or the Attorney General.
With respect to Rule 8 (d) Judge Sanborn pointed out that no provision was made for bills of particulars. 3 The Committee for the District
of South Dakota suggested that the statute governing the offense be stated
in the caption rather than in the body of the indictment. 4 Gustav H.
Dongus of Indianapolis, Indiana, would amend the rule to provide that
if any count in the indictment or information contains more than one
rhetorical paragraph, each such paragraph shall be numbered. 15 Failure to
9. Supra note 2, at 365-66.
so number may only be raised by motion before trial. He pointed out that
many indictments, particularly under the Sherman Act, are prolix. The
proposed amendment would not go as far as Rule 10 (b) of the Federal
Rules of Civil Procedure in compelling paragraphing. Thomas J. Morrissey thought that the informal accusation permitted by the rule would
result in numerous motions for bills of particulars, hence in the long run
would not save time and effort. 16 Professor Thomas E. Atkinson of the
University of Missouri Law School would recast the first sentence to read
as follows: "The Indictment or Information shall be in writing and shall
state the offense in plain, concise and definite language." This proposed
sentence does not call for taking the technical distinctions between evidence, facts and conclusions of law. Rule 8 (b) of the Federal Rules of
Civil Procedure contains no reference to pleading "facts." While Rule 3
of the Federal Rules of Criminal Procedure uses the expression "essential
facts," the expression there seems desirable as the complaint serves as a
basis for issuance of the warrant and therefore should be more detailed
than the indictment or information. Professor Robert W. Stayton of the
University of Texas Law School made a similar criticism. 17 Judge Campbell
E. Baumont of the Southern District of California would omit the word

"essential" as unnecessary and as productive of controversy.
With respect to Rule 8 (e) Thomas J. Morrissey doubted that there
would be any surplusage as Rule 8 made indictments and informations
so simple.' 8
With respect to Rule 8 (f) Judge Reeves thought that the Rule should
allow amendment of indictments as to formal defects, as where the name of
the defendant appears in the caption and not in the body of the indictment. 10 As surplusage may be stricken from an indictment, clerical errors
in an indictment should be subject to amendment. Judge John H. Druffel
of the Southern District of Ohio would allow amendment of the indictment
as permitted under the Ohio Statute.2 0 A rule permitting amendment of
informations only is not very helpful as most prosecutions are by indictment. Thomas V. Arrowsmith, Assistant United States Attorney for New
Jersey, would allow amendment of indictments under proper control of
the court. Judge Paul J. McCormick of the Southern District of California
thought that considerable difficulty could be avoided by omitting the language "if no additional or different crime is charged." 2 '
The Second Preliminary Draft (Eighth Committee draft), dated February 1944, made a number of changes. It was now numbered as in its
final form. Rule 7 (a) adopted the final title "Use of Indictment or Information." The sentence "offenses shall be prosecuted in the district
16.
17.
18.
19.
20.
21.
Supra
Supra
Supra
Supra
Supra
Supra
note
note
note
note
note
note
2,
2,
2,
4,
2,
2,
at
at
at
at
at
at
368.
369.
370.
73.
371. He cited Ohio Code, 13437-39.
372.
SYRACUSE LAW REVIEW

court by indictment or by information as provided by these rules" was
omitted. Rule 7 (b) on "Waiver of Indictment" provided: "An offense not
punishable by death may be prosecuted by information if the defendant,
after he has been advised of the nature of the charge and of his rights,
waives in open court prosecution by indictment." Thus the rule no longer
required representation by counsel. Rule 7 (c) provided that the indictment or information shall be signed by the attorney for the government.
The language "of guilty or not guilty" following the word "finding" as to
amendment of information was omitted. Rule 7 (f) was entitled "Bill of
Particulars." It was like the final Rule 7 (f) except as to its second sentence
which provided: "A motion for a bill of particulars may be made only
within ten days after arraignment or within a shorter time as prescribed
by rule or order."
There were many comments to the Advisory Committee on Rule 7
of the Second Preliminary Draft. With respect to Rule 7 (a) the Judicial
Conference of the Second Circuit adopted a motion by Judge Swan to
add to the rule a provision that consent of the court is not necessary to
the filing of an information.2 2 The Federal Grand Jury Association of the
Southern District of New York was opposed to waiver of indictment.23
Such waiver was an opening wedge to a weakening and destruction of the
grand jury. Prosecutors are likely to engage in "trading" with defendants
to encourage waiver.
With respect to Rule 7 (b) the Tennessee federal judge opposed waiver
of indictment. 24 Its constitutionality was doubted. Nathan April doubted
the wisdom of waiver on the uninformed discretion of a layman. Few laymen realize that a grand jury cannot indict unless it has before it evidence
adequate to make out a prima facie case. Judge David A. Pine of the
District of Columbia thought that the rule would prescribe the method of
advising the defendant of the nature of the charge.2 5 It should be in writing and have the exactitude of an information. The Committee on Criminal Law and Procedure of the Chicago Bar Association would require
the waiver to be in writing. It doubted the constitutionality of waiver as
the language of the Constitution seemed more clearly to require grand
jury indictment than it did trial by jury. A Special Committee of the
Oregon State Bar pointed out that the First Preliminary Draft provided
for representation by counsel and a written waiver. 26 The Second Preliminary Draft wrongly removed these safeguards. The Special Committee
of the Los Angeles Bar Association and the Committee of the State Bar
of California thought that the advice to the defendant of his rights should
23. 4 Comments, Recommendations, and Suggestions Concerning the Proposed
Federal Rules of Criminal Procedure 16 (1944).
26. Supra note 22, at 28a.

come from the court so as to obviate controversies on habeas corpus whether
or not the defendant had been advised. 27 Furthermore the defendant
should be represented by counsel. Harry C. Blanton, United States
Attorney for the Eastern District of Missouri, was opposed to the requirement that the waiver be in open court. The judge might be in some other
division. If the defendant has to wait until he arrives he may have to wait
as long as he would have to wait for a grand jury.
The Committee of the Seattle Bar Association thought that the
Rule 7 (c) should contain a provision whereby a defendant can obtain
the names of witnesses, either by way of endorsement upon the indictment on information, or upon application at a reasonable time before
28
trial.*
With one exception the Tennessee federal judges were opposed to
the issuance of an information without leave of court. Judge Darr thought
leave of court undesirable. Ralph F. Lesemann of the Bar Committee of
the Seventh Circuit thought that the forms in connection with Rule 7 (c)
were too concise.20 They did not sufficiently allege the place of the offense.
They would induce the filing of numerous bills of particulars and delay.
The Special Committee of the Los Angeles Bar Association and the Committee of the State Bar of California would delete the sentence as to the
means of committing the offense. 30 The provision would tempt the preparation of short accusations to the substantial prejudice of the defendant.
Harry C. Blanton objected to the provision requiring citation of the
statute. 31 The filing of an information for a misdemeanor should not
require leave of court.
With respect to Rule 7 (d) Judge Pine would amend the rule to provide
that where surplusage is stricken, the clerk shall supply the jury with a
certified copy of the indictment with the portions stricken deleted thereupon. 32 If the uncorrected indictment is given to the jury, the jury would
receive information which the defendant had a right to keep removed from
them.
With respect to Rule 7 (e) the Ohio federal judges adhered to their
view that indictments should be subject to amendment.33 The Michigan
federal judges opposed this view. It has never been the rule that federal
indictments are subject to amendment as to substance, although they may
be amended as to form. The Special Committee of the Los Angeles Bar
Association would allow amendment of an information only before the
4
beginning of the trial.
With respect to Rule 7 (f) Judge Bascom S. Deaver of the Middle
27.
28.
29.
30.
31.
:12.
33.
34.
Supra
Supra
Supra
Supra
Supra
Supra
Supra
Supra
note
note
note
note
note
note
note
note
23,
22,
22,
23,
23,
22,
22,
23,
at
at
at
at
at
at
at
at
17.
29.
29a.
18.
19.
29b.
30.
20.
SYRACUSE LAW REVIEW

District of Georgia would allow the defendant to move for a bill of
particulars at any time after indictment. 35 In some districts arraignment
occurs rather late, speedily followed by trial. If the defendant then moves
for a bill of particulars after arraignment, unnecessary delay will ensue.
Many defendants who would otherwise plead guilty would plead not guilty
and then move for a bill of particulars, and thus secure a continuance.
The Judicial Conference of the Second Circuit adopted a motion that
the defendant may have ten days after a plea of not guilty in any case. 36
Judge J. Foster Syme of the District of Colorado would reduce the time to
five days. It is embarrassing to the court to have to reduce the time allowed
by the proposed rule. The Special Committee of the Oregon State Bar
would provide that a motion may be made after the prescribed period with
leave of court. Ralph F. Lesemann would allow amendment of a bill of
particulars only with the court's permission. The proposed rule leaves
this unclear although probably it impliedly requires permission. The
Special Committee of the Los Angeles Bar Association would allow the
37
court by order to enlarge the time for a motion for a bill of particulars.
The last sentence of the rule should be amended to read: "A bill of
particulars may be amended after permission granted by the Court and
before the beginning of the trial, subject to such conditions as justice
requires."
The Report of the Advisory Committee (Ninth Committee draft)
dated June 1944, made some changes. There was added to Rule 7 (a) a
new sentence: "An information may be filed without leave of court." Rule
7 (b) adopted the final language on waiver of indictment to make it clear
that the waiver covered offenses where an indictment was required, save
in capital cases. The former version of the rule seemed to provide for
waiver even in cases where no indictment was required. The fifth sentence
of Rule 7 (c) now used the words "by one or more specified means" instead
of "in one or more specified ways." The second sentence of Rule 7 (f)
enlarged the time for making a motion for a bill of particulars, as in its
final form. The Supreme Court adopted the language of the Report without making any changes.
II.
THE CONSTITUTIONAL RIGHT TO BE INFOPIED OF THE

NATURE OF THE ACCUSATION
The writers on constitutional law refer but very briefly to the provision of the sixth amendment conferring on the defendant the right to be
informed of the nature and cause of the accusation against him. 38
In one of the few Supreme Court cases expressly referring to the sixth
35.
36.
37.
38.
Supra note 22, at 31.

Rottschaefer, Constitutional Law 767, 780-81 (1939).
amendment provision on the right to be informed of the nature and cause

of the accusation, Chief Justice Waite stated:
In criminal cases, prosecuted under the laws of the United States, the accused
has the constitutional right "to be informed of the nature and cause of the
accusation." Amend. VI. In United States v. Mills, 7 Pet. 142, this was construed
to mean, that the indictment must set forth the offence "with clearness and all
necessary certainty, to apprise the accused of the crime with which he stands
charged"; and in United States v. Cook, 17 Wall. 174, that "every ingredient
of which the offence is composed must be accurately and dearly alleged." . . .
The object of the indictment is, first, to furnish the accused with such a
description of the charge against him as will enable him to make his defence,
and avail himself of his conviction or acquittal for protection against a further
prosecution for the same cause; and, second, to inform the court of the facts
alleged, so that it may decide whether they are sufficient in law to support
a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must
be set forth in the indictment, with reasonable particularity of time, place,
and circumstances39
The constitutional right extends to misdemeanors as well as felonies. 40

There is no violation of the constitutional right where an indictment for
mailing obscene publications fails to set out the obscene matter in haec
verba, as the defendant can obtain a bill of particulars. 41 An indictment
for conspiracy, like any other indictment, is subject to the constitutional
requirement.4 2 Furnishing a bill of particulars will not answer the constitutional requirement. But as to criminal prosecutions involving obscene
matter there is no objection to the use of bills of particulars. 43 Two justices
dissenting asserted that the indictment must make specific reference identifying the matter found by the grand jury to be obscene. 54' Subsequently the
Supreme Court held that it is sufficient for the indictment to refer to the
obscene matter in a manner sufficient to identify it and to advise the defendant of the document intended. 45 The defendant, if prosecuted again,
may resort to parol evidence to show that the letter on which the indictment is based had been the subject matter of a former prosecution.
The constitutional provision extends to informations as well as indictments.40 A defendant is in special need of protection as there need be no
39. United States v. Cruikshank, 92 U.S. 542, 557 (1875). See also Wong Tai v.
United States, 273 U.S. 77, 80 (1927) ; dissenting opinion of Justices Field and Clifford
in Ex parte Virginia, 100 U.S. 339, 349, 352 (1879); United States v. Strauss, 283 F.2d
155, 158 (5th Cir. 1960); Fontana v. United States, 262 Fed. 283, 286 (8th Cir. 1919);
Hague v. United States, 184 Fed. 245, 248 (5th Cir. 1910); United States v. Illig, 288
Fed. 939, 941 (W.D. Pa. 1920); United States v. Aviles, 222 Fed. 474, 476 (S.D. Cal.
1915); United States v. Trumbull, 46 Fed. 755, 757 (D. Wash. 1891).
40. United States v. Staton, 27 Fed. Cas. 1300, 1302 (No. 16382) (C.G.W.D. Tenn.
1878).
41. United States v. Bennett, 24 Fed. Cas. 1093, 1098 (No. 14571) (C.C.S.D. N.Y.
1879).
42. United States v. Walsh, 28 Fed. Cas. 394, 395 (No. 16636) (C.C.E.D. Mo. 1878).
This case was cited in Bannon v. United States, 156 U.S. 464, 468 (1895).
43. Rosen v. United States, 161 U.S. 29, 34, 40 (1896). Justices White and Shiras
dissented.
44. Id. at 44, 45. See also Floren v. United States, 186 Fed. 961, 963 (8th Cir. 1911).
45. Bartell v. United States, 227 U.S. 427, 433 (1913).
46. United States v. Illig, 288 Fed. 939, 942 (W.D. Pa. 1920). See also Southern
Ry. Co. v. United States, 88 F.2d 31, 33 (5th Cir. 1937).
SYRACUSE LAW REVIEW

preliminary examination prior to filing of the information and as he does
not have the protection of a grand jury.
In 1906 Justice Harlan, speaking for the Supreme Court, held that if
the averments of the indictment are sufficient to enable the defendant to
prepare his defense, and to plead former jeopardy after an acquittal or
conviction, the constitutional requirement is met.47 The defendant is not
entitled to more. It is enough that the words of the indictment directly
and without ambiguity disclose all the essential elements of the offense.
But the rule that all parts of an indictment should be taken into consideration and that it should be reasonably construed "does not warrant a court
in supplying omitted language which is essential to a necessary element of
48
the offense."
In a case arising in the Philippine Islands the defendant was indicted
for adultery. Under the governing law he was entitled to notice of the
nature of the crime charged and to due process of law. Every element of
the offense was proved at the trial, but the indictment had failed to allege
the place of the offense and knowledge on the part of the man that the
woman was married. Such knowledge was an essential element. The defendant failed to object before judgment, and raised the point on appeal.
The Supreme Court held that the proceeding was valid.4 9
In 1907 Justice Holmes, speaking for the Court, stated:
The bill of rights for the Philippines giving the accused the right to demand
the nature and cause of the accusation against him does not fasten forever on
these islands the inability of the Seventeenth century common law to understand or accept a pleading that did not exclude every misinterpretation capable
of occurring to intelligence fired with a desire to pervert.50
An indictment for subornation of perjury committed before a grand

jury inquiry into certain criminal violations of the laws of the United
States relating to the public lands need not state the particular matter
brought under inquiry.51 The name of the specified defendant under investigation need not be stated as the identity of such defendant is normally
the end and not the beginning of grand jury proceedings.
An indictment for false personation with intent to defraud need not
set forth the nature of the fraud as that is not material, as it would be in an
indictment for defrauding. 52 On an indictment for conspiracy it is not
necessary to allege with technical precision all the elements essential to
the commission of the offense which is the object of the conspiracy, or to
state such object with the detail which would be required in an indictment
47. Burton v. United States, 202 U.S. 344, 372 (1906).
48. Mitchell v. United States, 118 F.2d 653, 655 (10th Cir. 1941).
49. Serra v. Mortiga, 204 U.S. 470, 474 (1907). Justice Harlan dissented. The case
is noted in 20 Harv. L. Rev. 573 (1907). See Orfield, Criminal Procedure from Arrest
to Appeal 207-8 (1947).
50. Paraiso v. United States, 207 U.S. 368, 372 (1907). See also Millard v. United
States, 148 Fed. 2d 154, 155 (5th Cir.), cert. denied, 325 U.S. 885 (1945).
51. Hendricks v. United States, 223 U.S. 178, 182 (1912).
52. Lamar v. United States, 240 U.S. 60, 65 (1916).
for committing the substantive offense.5 3 An indictment for violation of

the National Firearms Act and a conspiracy to violate such law in the
language of the statute and, in addition, revealing the means by which the
conspiracy was to be carried on and detailing what the defendants did to
constitute the substantive offense is valid.5
A circuit court has stated that the sixth amendment
is a reaffirmation of the essential principles of the common law, but puts it
beyond the power of either Congress or the courts to abrogate them. It
follows as a matter of course, that the effect of this provision commences with
the statutes fixing or declaring offenses, and, as to them, insures the general
rule of the common law that they are not to be construed to embrace offenses
which are not within their intention and terms ...
"The general rule is applied to an indictment more strictly." 55 The

indictment "must state in terms everything necessary to constitute a criminal act." 61 Furthermore "not only must all the elements of the offense be
stated in the indictment but . . . also they must be stated with clearness
and certainty, and with a sufficient degree of particularity to identify the
transaction to which the indictment relates as to place, persons, things, and
other details."
The due process clause of the fifth amendment prohibits Congress
from enacting and enforcing penal legislation that fails to furnish an
ascertainable standard of guilt or innocence.57 The sixth amendment also
so requires since the absence of any reasonably definite standards prevents
the defendant from knowing in advance with what he is being charged.
The sixth amendment does not preclude Congress from enacting in the
Harrison Narcotic Act that it shall not be necessary to negative in any
indictment any of the statutory exemptions or exceptions thereto. 58
An indictment for a narcotics offense must allege the exact place of the
offense; alleging the district and city is not enough.5 9 The court pointed
to the danger of another prosecution and difficulty as to pleading former
jeopardy. In dictum the court stated that as to murder the name of the
victim must be set forth; as to burglary, the building; as to embezzlement,
the trust relation; as to forgery, the instrument and name thereto forged;
as to perjury, the false testimony or statement.60 Since the sixth amendment
guarantees not only the right to notice of the accusation, but trial within
the state and district it is doubly essential to allege the place of the offense. 61
53. Wong Tai v. United States, supra note 39, at 81; Glasser v. United States, 315
U.S. 60, 66 (1942); United States v. Sherwin-Williams Co., 9 F.R.D. 69, 70 (W.D. Pa.
1949).
54. United States v. Bachman, 164 F. Supp. 898, 902 (D.D.C. 1958).
55. United States v. Potter, 56 Fed. 83, 88 (C.C.D. Mass. 1892).
56. Id. at 89.
57. United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921). See Rottschaefer,
Constitutional Law 767 (1939).
58. Fyke v. United States, 254 Fed. 225, 228 (5th Cir. 1918).
59. Skelley v. United States, 37 F.2d 503 (10th Cir. 1930).
60. Id. at 504.
61. Bratton v. United States, 73 F.2d 795, 798 (10th Cir. 1934). See also United
States v. Safeway Store, Inc., 51 F. Supp. 448, 458 (D. Kan. 1943).
SYRACUSE LAW REVIEW
But no such strict requirements have ever been enunciated by the Supreme
Court. In fact in 1958 a district court held that an indictment need not
allege venue and that it could be supplied by a bill of particulars. 62
An indictment for sale of a stolen automobile, previously transported
in interstate commerce, is invalid when it fails to show that the transportation had not come to an end and that the automobile had not come to rest
within the state long before the defendant received it.63 The right to be
informed of the nature and cause of the accusation is not a mere technical
or formal right within the meaning of the statute4 on imperfection of
form in indictment, or the statute6 5 against reversal on appeal for technical
errors.
An indictment charging assault with a dangerous weapon does not
violate the sixth amendment because it does not specify that the assault
was done with a rake.6 6 Upon request the government informed the defendant. A bill of particulars otherwise could have been granted.
A court of appeals decision of 194667 gave very full effect to the constitutional guaranty. The defendant was convicted on an information charging unlawful possession of rationed sugar. The information did not specify
which of the prohibitions contained in the ration order had been violated,
failed to negative the applicability of exceptions in the order, and contained
"legal conclusions" rather than "allegations of fact." No challenge was
made to the sufficiency of the information prior to the verdict. A motion
for a directed verdict was overruled. A motion in arrest of judgment was
overruled. On appeal the conviction was reversed on the ground that the
defendant had not been informed of the nature and cause of the accusation
as required by the sixth amendment. The decision was criticized as being
out of line with the modem tendency to disregard defects in the accusation if the record as a whole showed that the substantial rights of the
defendant have not been prejudiced. 68 Attacks after verdict have been
discouraged. Collateral attack on indictments by habeas corpus proceedings have usually not been permitted, whereas such attack lies if the right
to counsel was violated. It is to be doubted that a constitutional right
of the defendant was violated here as he had not been substantially prejudiced. Fairly construed the information charged an offense. There was
no showing that the defendant was unable to prepare for trial. He failed
62. United States v. Weishaupt, 167 F. Supp. 211, 212 (E.D.N.Y. 1958). In 1931 the
Supreme Court held that the exact place as to transportation of liquor need not be
set forth and that, at the most, relief was by bill of particulars. Husty v. United States,
282 U.S. 694, 702 (1931).
63. Grimsley v. United States, 50 F.2d 509 (5th Cir. 1931).
64. 18 U.S.C.A. 556. The statute was passed in 1872. See 17 Stat. 198 (1872).
65. 28 U.S.C.A. 391 (1919).
66. Eagleston v. United States, 172 F.2d 194, 201 (9th Cir.), cert. denied, 336 U.S.
952 (1949).
67. Sutton v. United States, 157 F.2d 661, 663 (5th Cir. 1946).
68. Note, 47 Colum. L. Rev. 693 (1947).
to apply for a bill of particulars. The defendant can resort to motion in

arrest of judgment where the constitutional guaranty is violated. 69
A count of an indictment for perjury that the defendant lied in denying that he had never been a "sympathizer" or promoter of Communism or
70
Communist interests was held so vague as to violate the sixth amendment.
The word "sympathizer" was uncertain in meaning. Even if the word
"promoter" was clear, the presence of the word "sympathizer" destroyed
the count. A count charging perjury of the defendant in denying that he
had been a "follower of the Communist line" and a count charging perjury
of the defendant in denying that he had been "a promoter of Communist
71
interests" were both held to violate the Constitution.
An indictment for perjury which does not indicate the words, substance, tenor or direction or the allegedly false testimony is so uncertain
as to violate the Constitution. 72 It is not enough that the indictment
followed the words of the statute.
An indictment for concealing assets from a receiver and trustee in
bankruptcy may properly use the words "conceal" and "belongings" without further allegations of fact showing concealment or ownership as these
words state circumstances of fact, and do not describe legal concepts. 73
A conviction for contempt of Congress cannot be predicated upon
imprecise questions propounded to the defendant before a Senate subcommittee. 74 The question set forth in the indictment must be definite
enough to enable the defendant to answer it with knowledge of its meaning. The question asked was: Had the witness been a member of the
Communist conspiracy between 1933 and 1950? The appellate court would
reverse even though the defendant made no objection of vagueness at
the hearing before the subcommittee.
An indictment for violation of the White Slave Act need not name the
5
victim of the offense.7
An indictment against a corporate officer for a fraudulent transfer of
corporate property in contemplation of the corporation's bankruptcy
violates the defendant's constitutional right when it fails to reasonably
6
identify the property of the corporation transferred.7
A dissenting judge in a decision of a court of appeals has asserted
69. Also so holding see United States v. Koon Wah Lee, 6 F.R.D. 456 (D. Hawaii
1947).
70. United States v. Lattimore, 215 F.2d 847, 849 (D.C. Cir. 1954) (one judge dissented). Noted, 43 Geo. L.J. 111 (1954). For similar holding in the court below see
112 F. Supp. 507, 515 (D.D.C. 1953), 32 Tex. L. Rev. 450 (1954), 102 U. Pa. L. Rev. 251
(1953). The lower court held that the first amendment was also violated. See also
49 N.Y.U.L. Rev. 77 (1954); 45 J. Crim. L. 576 (1955).
71. United States v. Lattimore, 127 F. Supp. 405, 407 (D.D.C. 1955).
72. United States v. Simplot, 192 F. Supp. 734, 737 (D. Utah 1961).
73. Pallett v. United States, 228 F.2d 671, 672 (5th Cir. 1956).
74. O'Connor v. United States, 240 F.2d 404, 405 (D.C. Cir. 1956).
75. Blumenfield v. United States, 284 F.2d 46, 49 (8th Cir. 1960).
76. United States v. Strauss, 285 F.2d 953, 955 (5th Cir. 1960).
SYRACUSE LAW REVIEW

that the defendant is not informed of the nature of and cause of the
77
accusation if there was no legal evidence before the grand jury.
The sixth amendment does not expressly say that the accused must
be informed through the indictment or the information of the nature and
cause of the accusation, although the cases seem to assume this. Arguably
a compulsory bill of particulars would be enough. 78 Two judges dissenting
in a case in which the court was divided four to two stated that "the indict79
ment is a usual though not the only means of affording the information."
A dissenting judge of a court of appeals has decried reliance on a bill
of particulars to supply a defendant with the necessary information.80 This
violates the right to a grand jury indictment under the fifth amendment
and to the right to be informed of the nature of the accusation under the
sixth amendment. Occasionally statutes8l defining specific offenses give a
legal right to a bill of particulars. This was the case as to a statute for the
District of Columbia on unnatural and perverted sexual practices. The
indictment together with the bill of particulars adequately assures the deto be informed of the
fendant of his right under the sixth amendment
82
nature and cause of the accusation against him.
As early as 1813 Chief Justice Marshall stated: "the rule that a man
shall not be charged with one crime, and convicted of another, may sometimes cover real guilt, but its observance is essential to the preservation of
innocence."8 3 A defendant "is entitled to know what he is charged with;
and he is entitled to be tried on the charges against him."8 4 In 1960 the
Supreme Court stated that "a court cannot permit a defendant8 5to be tried
on charges that are not made in the indictment against him."
The right to a written accusation either by indictment or by information is so fundamental that it cannot be waived. The Supreme Court has
stated by Justice Brandeis: "A person may not be punished for a crime
without a formal and sufficient accusation even if he voluntarily submits
to the jurisdiction of the court."8 6 Without a written accusation the defendant has not been in jeopardy7 and would therefore be exposed to the
8
danger of a second prosecution.
77. McKinney v. United States, 199 Fed. 25, 29, 31, 32, 38, 39, 40 (8th Cir. 1912).
78. Note, 35 Mich. L. Rev. 456, 461 (1937).
79. Pullen v. United States, 164 F.2d 756, 761, 762 (5th Cir. 1947).
80. Myers v. United States, 15 F.2d 977, 987, 988 (8th Cir. 1926). See Orfield,
Criminal Procedure from Arrest to Appeal 238 (1947).
81. 62 Stat. 346, 347.
82. Weldon v. United States, 183 F.2d 833, 834 (D.C. Cir. 1950); Tonker v. United
States, 178 F.2d 712 (D.C. Cir. 1949).
83. The Hoppet, 11 U.S. (7 Cranch) 389 (1813). See also Sutton v. United States,
157 F.2d 661, 664 (5th Cir. 1946) ; Butler v. United States, 20 F.2d 570 (8th Cir. 1927).
84. Epstein v. United States, 174 F.2d 754, 763 (6th Cir. 1949).
85. Stirone v. United States, 361 U.S. 212, 217 (1960).
86. Albrecht v. United States, 273 U.S. 1, 8 (1927). The court cited Ex parte Bain,
121 U.S. 1 (1887). See Orfield, Criminal Procedure from Arrest to Appeal 204-8 (1947);
Note, 66 Harv. L. Rev. 360 (1952).
87. Puttkammer, Administration of Criminal Law 126 n.2 (1953); Orfield, Criminal
Procedure From Arrest to Appeal 208 (1947). See, however, Serra v. Mortiga, 204 U.S.

III. DUE PROCESS OF LAW
A federal court has stated that there can be no conviction or punishment of a crime without a formal and sufficient accusation. The court can
acquire no jurisdiction "to try a person for a criminal offense unless he
has been charged with the commission of the particular offense and
charged in the particular form and mode required by law. If that is
wanting, his trial and conviction is a nullity, for no person can be deprived
of either life, liberty, or property without due process of law. The forms
or modes of accusation which the law recognizes are: "Indictment or presentment by a grand jury; and information by a public prosecutor."87 1a
The Court of Appeals of the Eighth Circuit has held that due process
of law requires that the defendant be informed of the nature and cause of
the accusation against him.88 The Court of Appeals of the Ninth Circuit
has also so held.89 In a district court case the defendant alleged such uncertainty and vagueness as to violate due process and the court considered
the contention 9 0
In a state court case the Supreme Court has held that there is a violation of due process of law under the fourteenth amendment if the defendant is convicted on a charge on which he was never tried. The same would
be true if he is convicted upon a charge that was never made. The defendants had been tried and convicted of a violation of section 2 of a
state statute. Their convictions were affirmed by the Arkansas Supreme
Court on the ground that they had violated section 1, describing a separate
and distinct offense. Justice Black stated:
No principle of procedural due process is more clearly established than that
notice of the specific charge, and a chance to be heard in a trial of the issues
raised by that charge, if desired, are among the constitutional rights of every
accused in a criminal proceeding in all courts, state or federal. . . . If, as
the State Supreme Court held, petitioners were charged with a violation of
1, it is doubtful both that the information fairly informed them of that
charge and that they sought to defend themselves against such a charge; it is
certain that they were not tried for or found guilty of it. It is as much a
violation of due process to send an accused to prison following a conviction
of a charge on which he was never tried as it would be to convict him upon
a charge that was never made.01
470, 476 (1907); Kepner v. United States, 195 U.S. 100, 129 (1904); United States v.
Ball, 163 U.S. 662, 669 (1896), 10 Harv. L. Rev. 243 (1897).
87a. Weeks v. United States, 216 Fed. 292, 293 (2d Cir. 1914). See Frye v. Settle,
168 F. Supp. 7, 12 (W.D. Mo. 1958).
88. Fontana v. United States, 262 Fed. 283, 286 (8th Cir. 1919). Opinion was by
Judge Walter H. Sanborn. See also Ex parte McClusky, 40 Fed. 71, 74 (C.C.D. Ark.
1889).
89. Simons v. United States, 119 F.2d 539, 544 (8th Cir.), cert. denied, 314 U.S.
616 (1941).
90. United States v. Mamber, 127 F. Supp. 925, 928 (D. Mass. 1955). See Felman,
The Defendant's Rights 30 (1958).
91. Cole v. Arkansas, 333 U.S. 196, 201, 202 (1948), reversing Cole v. State, 211 Ark.
836, 202 S.W.2d 770 (1947). This case has been cited favorably in federal criminal
prosecutions. United States v. Lembo, 184 F.2d 411, 414 n.6 (3d Cir. 1950). The case
is also a leading case on fatal variance between allegation and proof. See also In re
Oliver, 333 U.S. 257 (1948).
SYRACUSE LAW REVIEW

IV.
THE
FOURTH
AMENDMENT
The Supreme Court has stated by Justice Joseph R. Lamar

The 4th Amendment furnishes
the citizen the
nearest practicable safeguard
against malicious accusations. He cannot be tried on an information unless

it is supported by the oath of some one having knowledge of facts showing
the existence of probable cause. Nor can an indictment be found until after an
examination of witnesses, under oath, by grand jurors,--the chosen instruments of the law to protect the citizen against unfounded prosecutions,
92
whether they be instituted by the government or prompted by private malice.
V.
THE CONSTITUTIONAL RIGHT TO INDICTMENT BY A GRAND JURY
The fifth amendment provides: "No person shall be held to answer

for a capital, or otherwise infamous crime, unless on presentment or
indictment of a grand jury, except in cases arising in the land or naval
forces, or in the militia when in active service in time of war or public
danger." Thus the Constitution itself requires the existence of the grand
3
jury.9
In 1891 the Supreme Court held that the fifth amendment had no
extraterritorial effect, hence Congress could authorize the commencement
of criminal prosecutions for any offense including murder in the consular
courts without a grand jury.9 4 However the amendment would apply to
the prosecution of a person within the United States for a crime committed outside the United States. Using a grand jury would be impracticable as a competent one could not be obtained. The framers of the
Constitution were fully aware of the system of consular jurisdiction.
The defendant has the benefit of not being subjected to local jurisdiction
even though he does not have a grand jury.
There is no constitutional right to a grand jury in unincorporated
territories, such as Hawaii once was 9 5 Of course Congress could by statute
provide for grand juries in such areas. There is no constitutional right
to a grand jury in Guam.9 6 But for a time there was a right to indictment
under the Organic Act making Rule 7 applicable to Guam. 97 In 1956
Federal Rule 54 (a) (1) was amended to make the federal rules applicable
to Guam. All offenses were to be prosecuted in the District Court of Guam
92. United States v. Morgan, 222 U.S. 274, 282 (1911). This case was quoted
favorably in United States v. Kennedy, 5 F.R.D. 310, 312 (D. Colo. 1946). Compare,
however, Albrecht v. United States, supra note 86, at 4, 6.
93. Crowley v. United States, 194 U.S. 461, 475 (1904); Hurtado v. People of
California, 110 U.S. 516, 534 (1884); United States v. Hill, 26 Fed. Cas. 315, 316 (No.
15364) (C.C.D. Va. 1809).
94. In re Ross, 140 U.S. 583, 590, 596 (1891). For the similar holding below see
40 Fed. 135, 137 (C.C.N.D.N.Y. 1890).
95. Hawaii v. Mankichi, 190 U.S. 197, 215 (1903). Four justices dissented. Justice
Harlan wrote a separate dissenting opinion more fully discussing the problem. The
same was true as to Puerto Rico. Crowley v. United States, 194 U.S. 461, 475 (1904).
96. United States v. Seagraves, 100 F. Supp. 424, 425 (D. Guam 1951); Government
of Guam v. Pennington, 114 F. Supp. 907, 908 (D. Guam 1953); Pugh v. United States,
212 F.2d 761, 762 (9th Cir. 1954).
97. Mafnas v. Government of Guam, 228 F.2d 283, 285 (9th Cir. 1955).

and of the Virgin Islands by information except to such extent as may
be required by local law to be prosecuted by indictment by a grand jury.
The amendment became effective on July 8, 1956.
Murder of one Cherokee Indian by another Cherokee Indian committed
within the jurisdiction of the Cherokee nation does not require a grand
98
jury as the offense is against the local laws of the Cherokee nation.
Treaties and federal statutes permitted the Cherokee nation to exist as
an autonomous body. A grand jury less than thirteen, namely, five could
properly be used.
Aliens tried in the United States for crimes committed in the United
States are entitled to indictment by grand jury for infamous crimes. 99
Persons in the regular land or naval forces may be prosecuted by
court martial without grand jury indictment.1 There is an express exception in the fifth amendment as to "cases arising in the land or naval
forces." Article I, section 8 of the Constitution confers on Congress the
power "to make rules for the government of the land and naval forces."
The cases mentioned in the constitutional restriction are not restricted to
those involving offenses against the law of war alone, but covers all
offenses, including crimes which were of the class traditionally triable by
jury at common law. 1 1
In proceedings by way of military commission for offenses against the
law of war there is no right to a grand jury indictment. 0 2 It made no
difference that it was not a case "arising in the land or naval forces." An
express exception in the constitution was not necessary.
Only the militia are included in the language "when in actual service
in time of war or public danger." Thus those in the land or naval forces
have no right to a grand jury even in time of peace. 10 3 Such persons have
no constitutional right to a grand jury as to the offense of rape committed
04
within the geographical limits of the United States during time of peace.'
The defendant is in the armed forces even though the armed forces in
Korea were under the flag of the United Nations. 1 5
A number of early cases held that a discharged member of the land
or naval forces is not entitled to a grand jury.106 It was a case "arising in
98. Talton v. Mayes, 163 U.S. 376, 382 (1896).
99. Wong Wing v. United States, 163 U.S. 228, 237, 241 (1896).
100. Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857). Justice McLean dissented.
In accord see Ex parte Milligan, 71 U.S. (4 Wall.) 281 (1866). Fleet Reserves are in
the naval forces and not entitled to a grand jury. United States ex rel. Pasela v. Fenna,
167 F.2d 593, 595 (2d Cir.), cert. dismissed, 335 U.S. 806 (1948).
101. Ex parte Quirin, 317 U.S. 1, 43 (1942).
102. Id. at 38.
103. Johnson v. Sayre, 158 U.S. 109, 114 (1895); Ex parte Mason, 105 U.S. 696
(1881).
104. Owens v. Markley, 186 F. Supp. 604, 606 (S.D. Ind. 1960), aff'd, 289 F.2d 751
(7th Cir. 1961). The sentence was fifteen years imprisonment. See also Hackworth v.
Taylor, 283 F.2d 250 (10th Cir. 1960), involving murder in Korea.
105. Jennings v. Markley, 186 F. Supp. 611, 612 (S.D. Ind. 1960). The sentence
was thirty years for murder and assault with intent to do bodily harm.
106. In re Bogart, 3 Fed. Cas. 793, 799 (No. 1596) (C.C.D. Calif. 1873).
SYRACUSE LAW REVIEW

the land or naval forces," as the crime occurred during the time of service.
The mere fact of arrest and prosecution after discharge would not be
regarded as preventing its being a "case." In 1922 a district court held
that in view of the fact that the statute had been in effect and enforced for
sixty years it would not hold the statute unconstitutional although in 1895
a distinguished writer on military law, Colonel Wqinthrop, had doubted
its constitutionality.107 As late as 1933 a district court followed this
view; 108 and as late as 1950 a court of appeals. 1O But in 1944 a court of
appeals held that a grand jury was necessary." 0 In 1946 a district court
held likewise."' It pointed out that the Supreme Court in Ex parte Milligan"12 had stated that one in the armed forces surrendered his right to
be tried by the civil courts while serving. Finally in 1955 the Supreme
Court held that a discharged member of the land or naval forces is
entitled to indictment by a grand jury, and is not subject to court martial."- 3 The Court stressed the narrow extent of the war powers to deprive
Article III courts of jurisdiction.
In 1957 the Supreme Court held that a wife, child, or other civilian
dependent of one in the armed forces is not subject to court maritial in
capital cases and has the right to indictment by a grand jury." 4 Justice
Black speaking for four members seemed to hold that when the American
government exercises authority over United States civilians in foreign
lands in time of peace, grand jury indictment is required as to offenses
where in a regular prosecution in the United States there would have to
be a grand jury. But one concurring justice would limit the rule to capital
cases. In 1960 it was finally held that civilian dependents"15 and civilian
employees" 6 of the armed forces are entitled to grand jury indictment
whether the offense is capital or not.
Justice Field, sitting as a circuit justice, concluded that the phrase
"infamous crimes" embraced all felonies."i 7 Misdemeanors involving
107. Ex parte Joly, 290 Fed. 858, 860 (S.D.N.Y. 1922).
108. Terry v. United States, 2 F. Supp. 962, 963 (W.D. Wash. 1933).
109. Kronberg v. Hale, 180 F.2d 128, 130 (9th Cir. 1950), affirming Kronberg v.
White, 84 F. Supp. 392 (N.D. Calif. 1949).
110. Mosher v. Hunter, 143 F.2d 745, 746 (10th Cir. 1944).
111. United States ex rel. Flannery v. Commanding General, 69 F. Supp. 661, 665
(S.D.N.Y. 1946).
112. 4 Wall. 2, 123 (1866).
113. United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), 70 Harv. L.
Rev. 107 (1956). The court below had held contrary. Talbott v. United States ex rel.
Toth, 215 F.2d 22, 26 (D.C. Cir. 1954), reversing 114 F. Supp. 468 (D.D.C. 1953).
114. Reid v. Covert, 354 U.S. 1, 7, 8, 21, 22 (1957), 43 Iowa L. Rev. 415
(1958). Two justices dissented. The decision was a rehearing after the court had held
against the right to grand jury indictment. See Reid v. Covert, 351 U.S. 487 (1956) in
which three justices dissented and one reserved his opinion.
115. Kinsella v. United States, 361 U.S. 234, 246 (1960). The court affirmed 164
F. Supp. 707 (S.D.W. Va. 1958).
116. Grisham v. Hagan, 361 U.S. 278, 280 (1960); McElroy v. United States, 361
U.S. 281, 283 (1960). See notes, 74 Harv. L. Rev. 116 (1960), 45 Iowa L. Rev. 888
(1960), 20 La. L. Rev. 714 (1960), 21 Ohio St. L.J. 438 (1960).
117. Charge to Grand Jury, 30 Fed. Cas. 992, 993 (No. 18255) (C.C.D. Calif. 1872).

certain internal revenue offenses are not infamous crimes. 118 Circuit Judge
Dillon stated: "The words 'infamous crime,' have a fixed and settled
meaning. In a legal sense they are descriptive of an offence that subjects
a person to infamous punishment or prevents his being a witness. The
fact that an offence may be, or must be, punished by imprisonment in the
penitentiary does not necessarily make it, in law, infamous." 1 9 Where the
punishment for an offense is not only imprisonment and fine, but also
disqualification from holding any place of trust and profit or honor under
the laws of the United States, and ineligibility to office, the crime is infamous. 20 Where the offense is not treason and is not expressly declared by
Congress to be a felony, it is a misdemeanor and not an infamous crime
when it is not of that class of misdemeanors within the designation of
crimen falsi.'21 The misdemeanor is not crimen falsi if it does not render
the party convicted incompetent to testify. The mode or measure of the
punishment does not determine the character of the offense, as is the case
in some states. Hard labor is not the test. In 1881 a circuit court held
that the crime of passing counterfeit trade dollars is not an infamous
offense. The test is whether or not the nature, purpose, and effect of the
act made criminal is such as to make it infamous as the term was understood at common law; and cannot be determined by reference to any declaration in the statute or by the nature of the punishment. 22 In 1882 a
district court held that an offense is not infamous unless expressly declared
infamous or made a felony by act of congress, or involves disqualification
as a witness or juror. 23 It followed that stealing from the mails was not
an infamous offense. In 1883 a leading author, Francis Wharton, thought
that the punishment should be an important factor. 24
In 1885 the question was presented to the Supreme Court. The Court
held that an offense punishable by imprisonment in a prison or penitentiary with hard labor is an infamous crime.' 2 5 This had been the English
and American law for a century. The Court intimated that the concept
may be affected by changes of public opinion from one age to another. 2 6
118. United States v. Ebert, 25 Fed. Cas. 972 (No. 15019) (W.D. Mo. 1874).
119. United States v. Maxwell, 26 Fed. Cas. 1221, 1222 (No. 15750) (C.C.W.D. Mo.
1875).
120. United States v. Butler, 25 Fed. Cas. 226 (No. 14701) (C.C.D.S.C. 1876).
121. United States v. Baugh, 1 Fed. 784, 787 (E.D. Pa. 1880). See also United
States v. Black, 24 Fed. Cas. 1174, 1175 (No. 14609) (D. Ore. 1877).
122. United States v. Yates, 6 Fed. 861, 866 (E.D.N.Y. 1881); United States v.
Field, 16 Fed. 778 (C.C.D. Vt. 1883). In United States v. Petit, 11 Fed. 58 (C.C.E.D.
Mo. 1882), the judges were divided on the point, and certified the issue to the
Supreme Court, which found the offense infamous as imprisonment at hard labor was
involved. 114 U.S. 429, 430 (1885).
123. United States v. Wynn, 9 Fed. 886, 891-94 (E.D. Mo. 1882).
124. Note, 16 Fed. 779, 781 (1883). Cooley thought that an infamous offense is
one involving moral turpitude in the offender, or infamy in the punishment, or both.
Punishment in the penitentiary involves infamy as does loss of civil or political privileges.
Cooley, Constitutional Law 291, cited at 16 Fed. 782.
125. Ex parte Wilson, 114 U.S. 417, 426 (1885). The prisoner was discharged on
habeas corpus.
126. For example, in 1885, placing on the stocks or whipping was infamous, but it
was not in 1789.
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An offense could be infamous even though Congress had not declared it
to be such. The constitutional provision limited Congress as well as the
prosecution. Infamous punishments are not limited to those which are
cruel and unusual under the eighth amendment, as the latter are wholly
forbidden. The Court stated that it was deciding nothing beyond what was
required by the facts of the case. The Supreme Court has intimated that a
crime would be infamous if punishable by a disqualification to hold
office. 12 7 Shortly thereafter the Supreme Court held crimes punishable by
imprisonment in a state prison or penitentiary, with or without hard
labor, were infamous.'2s A crime is infamous when the statute authorizes
the court to impose an infamous punishment even though the punishment
ultimately inflicted is not infamous. 2 9
In 1919 the Court of Appeals of the Fifth Circuit held that maintaining a house of ill fame within five miles of a military camp was not an
infamous offense as the penalty was imprisonment for not more than 12
months and a fine of not more than $1,000, or both.130 It made no difference that the defendant might have to serve extra time for failure to pay
the fine. The court pointed out that the offense did not involve moral
turpitude, nor was it a crimen falsi, nor was it punishable by a penitentiary or hard labor sentence.
In 1922 the Supreme Court held that imprisonment at hard labor even
for a short term and even for a misdemeanor, whether in a penitentiary or
workhouse or elsewhere, is an infamous punishment requiring indictment
by a grand jury.131 The Court adopted the view that the character of the
punishment rather than that of the place of imprisonment is determinative. Three justices in a dissenting opinion 32 took the view that confinement of hard labor in a workhouse or house of correction did not imply
infamy at common law and should not now; and that it is imprisonment in
a penitentiary that shows infamy. Hence commitment to a workhouse
for non-support of minor children should not be regarded as infamous.
Congress could provide for grand jury indictment as the sole method
of prosecution as to crimes not infamous. A statute 33 providing for in127. United States v. Waddell, 112 U.S. 76, 82 (1884).
128. Mackin v. United States, 117 U.S. 348, 352 (1886). Under an act of Congress,
federal defendants sentenced to imprisonment for more than a year, or to imprisonment and confinement to hard labor could be imprisoned in state prisons or penitentiaries. See also Parkinson v. United States, 121 U.S. 281 (1887).
129. In re Clawsen, 140 U.S. 200, 205 (1891); Fitzpatrick v. United States, 178 U.S.
304, 307 (1900); United States v. Sloan, 31 F. Supp. 327 (W.D.S.C. 1940).
130. Pollard v. United States, 261 Fed. 336, 338 (5th Cir.), cert. denied, 252
U.S. 577 (1919). See also Hunter v. United States, 272 Fed. 235, 238 (4th Cir.), cert.
denied, 257 U.S. 633 (1919).
131. United States v. Moreland, 258 U.S. 433, 435, 25 A.L.R. 992 (1922). See
Rottschaefer, Constitutional Law, 779-80 (1939). The case was followed in Falconi v.
United States, 280 Fed. 766, 767 (6th Cir. 1922). Cf. Brede v. Powers, 263 U.S. 4 (1923).
132. Opinion was by Brandeis, concurred on by Taft and Holmes.
133. 46 Stat. 1029 (1930).

formation or complaint as to certain offenses lightly punished was con134
strued however, as not doing this.
Offenses which are not infamous may be prosecuted by information by
way of joinder of offenses even though the penalties when added together
may result in imprisonment for two and a half years. 13 5 This is because in
contemplation of law each count is a separate information.
Where a defendant had been twice convicted of unlawful sale of
morphine, it did not violate the right to a grand jury indictment when the
United States Attorney after conviction for conspiracy filed an information
alleging such prior convictions, as the information went only to the punishment.36 A statute provided for heavier punishment on a third conviction
and for the filing of an information after the third conviction.
Violation of the Anti-Trust Act does not involve an infamous offense,
as the offense is a misdemeanor, punishable by a fine, or by fine and im37
prisonment not to exceed one year.
Since under modern statutes the Attorney General, rather than the
trial judge, decides in what institution a sentence is to be served and may
provide for employment of such inmates, it is possible that mild offenders
will be found at hard work. Yet as of 1945 it was pointed out the federal
courts had not taken account of this change in applying the test as to
infamous offenses.' 38 Possibly all offenses for which a jail sentence may be
imposed should now be regarded as infamous. 3 9 Another alternative is
to hold that all offenses involving a penalty of more than one year are in40
famous.1
In 1958 the Supreme Court held that violation of a surrender order
of defendants on bail could be prosecuted without indictment by a grand
jury.' 41 It made no difference that the defendants were sentenced to three
years' imprisonment. Three justices dissented on this point.
It has occasionally been asserted that the right to a grand jury and
the right to a petty jury are equally broad in scope. Justice Davis, speaking
for the Supreme Court, has stated that "the framers of the Constitution,
134. Duke v. United States. 301 U.S. 492, 494 (1937); United States v. Sloan, 31
F. Supp. 327, 329 (W.D.S.C. 1940).
135. Archambault v. United States, 224 F.2d 925, 927 (10th Cir. 1925); De Jianne
v. United States, 282 F.2d 737, 741, 742 (3d Cir. 1922); United States v. Lomas, 60
F. Supp. 198, 199 (S.D.N.Y. 1945).
136. Beland v. United States, 123 F.2d 795, 796 (5th Cir.), cert. denied, 317 U.S.
676 (1942).
137. American Tobacco Co. v. United States, 147 F.2d 93, 117 (6th Cir. 1944), aff'd,
328 U.S. 781 (1946), 54 Yale L.J. 707 (1945); United States v. Atlantic Commission Co.,
45 F. Supp. 187, 191 (E.D.N.C. 1942).
138. Note, 54 Yale L.J. 707, 709 (1945).
139. Id. at 710.
140. Id. at 711.
141. Green v. United States, 356 U.S. 165, 183 (1958), 25 Brooklyn L. Rev. 118,
72 Harv. L. Rev. 153. The lower courts had held likewise, 241 F.2d 631, 633 (2d
Cir. 1957); 140 F. Supp. 117 (S.D.N.Y. 1956). See annotation on what offenses are
infamous, 2 L.Ed. 2d 1960 (1958). See also Piemonte v. United States, 81 Sup. Ct. 1720,
1726 (1961).
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doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in
the fifth."142 However the fifth amendment gives the right to a grand jury
only as to infamous crimes, while the sixth contains no such limitation.
In the District of Columbia it has been held that assault and battery is
triable by a jury even though prosecution is by information and even
though at common law an indictment would have been required. 43 The
Court of Appeals of the Sixth Circuit held that an offense may require
trial by jury even though it is not an infamous offense. 144 Certain liquor
offenses which could be prosecuted by information nevertheless required
trial by jury. 1 45 In 1958 the Supreme Court stated: "It would indeed be
anomalous to conclude that contempts subject to sentence of imprisonment for one year are 'infamous crimes' under the Fifth Amendment although they are neither 'crimes' nor 'criminal prosecutions' for the purposes of jury trial within the meaning of Article IV, sec. 2, and the Sixth
Amendment."u 46 Thus it must be concluded that the right to grand jury
indictment is not quite as wide as the right to trial by jury.
The guaranty of indictment by a grand jury implies that the body of
the indictment or the charging part may not be amended. 147 Surplusage
may not be stricken out of an indictment by order of the court or by the
United States Attorney without resubmission to the grand jury. 148 Habeas
corpus was allowed when the trial court struck out six words. 149 Even at
common law indictments could not be amended, although informations
might. The caption might be amended as it is no part of the indictment. 15
In 1896 the Justices White and Shiras stated, in a dissenting opinion
in which even the majority might have concurred on the particular point
if they had adverted to it, that it is correct "doctrine which denies the
power, even by statute to authorize amendments which substantially
change an indictment ....
The legislative authority not being competent
to authorize an amendment so as to convert a void into a valid indictment,

surely a prosecuting officer can have no such power."' 51 In 1897 the Supreme Court suggested that a recital in an indictment that it was presented
on the oath of jurors when it was presented on affirmation as to one juror
was purely formal, "and if defective was open to amendment."' 52 A lower
142. Ex parte Milligan, 4 Wall. 2, 123 (1866).
143. In re Robinson, 20 D.C. 570, 571 (1892).
144. Low v. United States, 169 Fed. 86, 89 (6th Cir. 1909).
145. Coates v. United States, 290 Fed. 134 (4th Cir. 1923).
146. Green v. United States, 356 U.S. 165, 184 (1958). To similar effect see the case
below. 241 F.2d 631, 633 (2d Cir. 1957).
147. Ex parte Bain, 121 U.S. I,5, 8 (1887).
148. Id. at 9.
149. The stricken words were: "The Comptroller of the Currency and." The trial
court struck out these words on motion of the government.
150. 121 U.S. at 7.
151. Rosen v. United States, 161 U.S. 29, 44, 51 (1896). The Court cited I Bishop,
Criminal Procedure, 97, 55 and Wharton, Criminal Pleading and Practice, 90(2).
152. Brain v. United States, 168 U.S. 532, 567 (1897).

court held that while a bill of particulars can be amended an indictment
cannot be. 153 A caption stating the wrong term of court may be amended
by the record.154 But a caption is not part of the indictment, nor is the
commencement, so both should be open to amendment.155 But as to the
body of the indictment the Supreme Court "adheres very strictly to the
rule that there can be no amendment of an indictment in our practice,
even in matters that are immaterial, without a violation of the fifth amendment of the constitution of the United States; and, of course, it can no
more be amended under the guise importing into it outside words or
documents by implication and intendment than by a more direct process,
which is not permitted under the Constitution."' 5 6 No Act of Congress
authorizes amendments of indictments. 15 7 An abandonment of an allegation of the foreign or alien character of a corporation was held not to be
an amendment, but merely changed the proof to be offered. Amendment
means a change or modification to better an allegation by removing that
which is erroneous, corrupt, or superfluous, or by substituting something
in the place of what is removed. Abandonment operates as a nolle prosequi. Clerical errors in the indictments may sometimes be cured by instructions of the court and verdict. 158
In 1919 the Court of Appeals for the Second Circuit held that an
amendment striking out surplusage from counts was "error of the most
serious kind" where this was done on motion of the government even
though counsel for the defendant at once stated: "No objection."' 5 9
In 1924 the Supreme Court seemed to retreat from its former strictness as to amendment of indictments. In a case coming up from the Territory of Hawaii on habeas corpus the Court held where an indictment was
phrased disjunctively but it was stipulated by the government and the
defendant that it should be construed conjunctively, this did not constitute an amendment of the indictment. 60 If there had been no stipulation
then the construction might have been an error in the exercise of jurisdiction, yet the trial might have proceeded.
In 1923 the Supreme Court held that withdrawal by the trial court
from the jury of parts of an indictment not supported by the evidence is
not an amendment of the indictment.' 61 The trial was on the charge
153. United States v. Adams Express Co., 119 Fed. 240, 241 (S.D. Iowa 1902).
154. United States v. Clark, 125 Fed. 92, 93 (M.D. Pa. 1903).
155. United States v. Howard, 132 Fed. 325, 343 (W.D. Tenn. 1904).
156. Id. at 344.
157. United States v. Munday, 211 Fed. 536, 538 (W.D. Wash. 1914).
158. McGrath v. United States, 275 Fed. 294, 299 (2d Cir. 1921). Cf. Edwards v.
United States, 266 Fed. 848, 851 (Ith Cir. 1920).
159. Dodge v. United States, 258 Fed. 300, 305 (2d Cir.), cert. denied, 250 U.S.
660 (1919). See, annot. 7 A.L.R. 1516, 1555-56 (1920).
160. Goto v. Lane, 265 U.S. 393, 402 (1924).
161. Salinger v. United States, 272 U.S. 542, 548 (1926). See also Barnard v. United
States, 16 F.2d 451, 453 (9th Cir. 1926), cert. denied 274 U.S. 736 (1921); Silkworth v.
United States, 10 F.2d 711, 715 (2d Cir.), cert. denied 271 U.S. 664 (1926); Mellor v.
United States, 160 F.2d 757, 763 (8th Cir.), cert. denied 331 U.S. 848 (1947); Ralston
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preferred in the indictment and not on a modified charge. The defendant
had requested that the part be withdrawn and the court acceded to the
request in its instructions. But while the Supreme Court did not find this
an amendment, it did not pass on whether this was sound procedure. This
case was later construed as holding that a count cannot be stricken in part;
62
but a whole count could be dismissed.'
An amendment changing the date of the offense of using the mails
to defraud from December 1925 to December 1926, made on motion of
the government, was permissible as the date was not material.163 The court
of appeals pointed out that actually no physical alteration of the indictment was made and that furthermore no amendment was needed as the
government was free to prove the correct date. While the error affected
two counts, there was a verdict of guilty on all counts, but the punishment
did not exceed that which could be imposed on one count. Hence the
holding on its facts was not harsh, there being at least one good count.
An objection to an amendment of an indictment changing the defendant's name from "Harry Wilson" to "Harry Nelson otherwise known
as Leo Wilson" cannot be raised for the first time after trial by motion
in arrest of judgment. 64 Such misnomer should have been objected to by
a plea in abatement. While amendments of substance in the body of the
indictment are forbidden, this is not true of amendments of form. Following this case a district court ruled that a misnomer of the defendant corporation could be amended. 6 5
Where the original indictment against a federal employee for receiving money for services rendered to another contained the phrase "as
compensation for services of to" the substitution of the word "rendered"
for "to" did not vitiate the indictment even on demurrer. 0 6 The amendment was only intended to perfect a meaningless sentence. Another count
contained the correct language.
In 1949 a court of appeals concluded' 67 that at least four federal decisions prior to the federal rules had held that mere clerical errors in
indictments are not fatal, even when they are in the body of the indictment.168
v. Cox, 123 F.2d 196, 198 (5th Cir. 1941); Hartzell v. United States, 72 F.2d 569, 586
(8th Cir. 1934).
162. Edgerton v. United States, 143 F.2d 697, 699 (9th Cir. 1944). This is said to
be a whittinlg down of the Bain doctrine by Kirchheimer. See Kirchheimer, The Act,
The Offense, and Double Jeopardy, 58 Yale L.J. 513, 535 (1949).
163. Gridley v. United States, 44 F.2d 716, 741 (6th Cir. 1930).
164. United States v. Fawcett, 115 F.2d 764, 766 (3d Cir. 1940). The case is criticized
in the dissent in United States v. Denny, 165 F.2d 668, 671, 672 (7th Cir. 1947), cert.
denied 333 U.S. 844 (1948).
165. United States v. Empire Hotel Corp. Co., 47 F. Supp. 395, 401 (E.D. Pa. 1942).
166. United States v. Reisley, 39 F. Supp. 432, 435 (D.N.J. 1940).
167. Stillman v. United States, 177 F.2d 607, 611 n.3 (9th Cir. 1949).
168. United States v. Fawcett, 115 F.2d 764, 766 (3d Cir. 1940); Lund v. United
States, 19 F.2d 46, 47 (8th Cir. 1927) (information involved); Iponmatsu Ukichi v.
United States, 281 Fed. 525, 527 (9th Cir.), cert. denied 260 U.S. 729 (1922); Hogue
v. United States, 192 Fed. 918 (5th Cir. 1912).
Since the caption of an indictment is not a part of the indictment it

may be amended. A typographical error as to the term in which the grand
jury served could therefore be corrected by amendment. 16 9
A stipulation of facts filed by a defendant for use in sentencing is not
a part of the indictment, as nothing can be added to the indictment without the concurrence of the grand jury.'7 0 Such stipulation filed after a
plea of nolo contendere would raise no issue for a jury.
In the absence of a showing to the contrary, an alteration in an
indictment is conclusively presumed to have been made prior to the time
the grand jury acted on the indictment.171 In this case a name had been
marked out in two places.
An indictment for an offense not infamous is not amended where it
172
is dismissed and an information is then filed.
In a prosecution for making a threat against the life of the President,

where a single count indictment contained two separate threats made to
two different persons, and at the close of its proof the government elected
to stand on one of the offenses and the court so instructed the jury, and
the indictment was not physically altered in any way, the rule against
amendment of indictments was not violated. 173 An indictment is not
amended where on motion of the defendant requiring the government
to elect, parts of the indictment are stricken out, as such motion has the
174
effect of a motion to strike out surplusage.
The district court may not even with consent of counsel for the defendant amend language in an indictment charging that the defendants
counterfeited "K-14 h"'175 coupons in order to charge that they counterfeited "A-14 h" coupons. This was "error of the most serious kind." It
could not be assumed that the grand jury intended the latter even if there
never were any original K-14 h coupons. But the same year the Court of
Appeals of the Seventh Circuit held that on motion of the government the
surname of the defendant could be changed from "Kenny" to "Denny."' 176
One of the three judges rightly dissented.177 Amendments whether of form
or substance are forbidden.
Where an amendment sought by the government striking out certain
language from the indictment is granted but rescinded before trial, the
78
constitutional rights of the defendant are not violated.
169. Stillman v. United States, 177 F.2d 607, 611 (9th Cir. 1949).
170. United States v. Morris, 281 U.S. 619, 622 (1930).
171. United States v. Chandler, 157 F. Supp. 753, 756 (S.D.W. Va. 1957).
172. United States v. Pichard, 207 F.2d 472, 474 (9th Cir. 1953); Gowdy v. United
States, 207 F.2d 730, 731 (9th Cir. 1953).
173. United States v. Stepp, 144 F. Supp. 826, 827 (D. Colo. 1956).
174. Williamson v. United States, 262 F.2d 476, 482 (9th Cir. 1959).
175. Carney v. United States, 163 F.2d 784, 788 (9th Cir.), cert. denied 332 U.S.
824 (1947). See 41 J. Crim. L. 462, 464 (1950).
176. United States v. Denny, 165 F.2d 668, 670 (7th Cir. 1947), cert. denied 332
U.S. 844 (1948). One count named the defendant correctly.
177. See note, 22 So. Calif. L. Rev. 61 (1948). Cf. Scott, Fairness in Accusation of
Crime, 41 Minn. L. Rev., 509, 537, 541 (1957).
178. Heald v. United States, 177 F.2d 781, 783 (10th Cir. 1949).
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Amendment of an indictment as to name of a corporation has been
permitted in limited circumstances. Where the charge was that the defendant, a private detective, wilfully deprived certain persons of rights,
privileges or immunities protected by the Constitution and laws of the
United States while investigating thefts of the property of the Lindsley
Lumber Company, which was also named a defendant, amendment of the
indictment by substituting for the Lindsley Company the Dania Supply
Company, doing business as the Lindsley Lumber Company, was properly
allowed, and even if erroneous was not prejudicial to such private detective, who is the present appellant. 179 Where an amendment does not
mislead, or put added burdens on the defendant, or otherwise prejudice,
the amendment is merely of form and allowable. As to the Dania Supply
Company the amendment was one of substance and not of form and therefore invalid. However it was not convicted and did not complain.
Where a count fails to set forth the name of the defendant or to refer
to any defendant, the indictment cannot be amended to insert the name,
even though the defendant or the court was willing to amend.18 0
The Supreme Court in 1960 laid down a strict rule against amendment either express or implied.' 8 ' The indictment charged that the defendant in violation of the Hobbs Act used his influential position with a
union to obstruct interstate commerce and the movement of "materials
and supplies" in interstate commerce. The "goods and materials" specified in the indictment referred to sand used for making ready-mixed concrete, but the trial judge charged the jury that, so far as the interstate aspects
of the case were concerned, a finding of guilty could be based on either the
shipping of the sand or on the fact that the building under construction
was a mill which would be used to manufacture steel that would be
shipped in interstate commerce. The district court had upheld the conviction, 8 2 as had the court of appeals. 8 3 The defendant had been convicted of an offense not charged in the indictment. The indictment could
be broadened only by the grand jury itself. The effect of the instruction
by the trial court was to amend the indictment by the court. The Hobbs
offense has two essential elements: interference with interstate commerce
and extortion. When only one particular kind of commerce is charged to
have been burdened, a conviction must rest on that charge and not another. A defendant may not be tried on charges that are not made in the
indictment against him. The case has been construed as holding that the
"defendant was convicted of a crime different from the crime for which
179. Williams v. United States, 179 F.2d 656, 659 (5th Cir. 1950).
180. Chow Bing Kew v. United States, 248 F.2d 466, 468 (9th Cir. 1957).
181. Stirone v. United States, 361 U.S. 212 (1960). Compare the discussion in 6
N.Y. Univ. Instit., Proc. 157-58 (1946); Kirchheimer, The Act, The Offense and
Double Jeopardy, 58 Yale L.J. 513, 534-39 (1949).
182. United States v. Stirone, 168 F. Supp. 490, 495, 496 (W.D. Pa. 1957).
183. United States v. Stirone, 262 F.2d 571, 574 (3d Cir. 1958). The decision was
two to one. On petition for rehearing, the decision was three to two.

he was indicted."' 8 4 It can be anticipated that many defendants will rely
on this case to allege improper amendment and fatal variance.
In 1937 Justice Cardozo, speaking for the Supreme Court, stated that
"the immunity from prosecution except as the result of an indictment may
have value and importance."' 18 5 Even so, it is "not of the very essence of
a scheme of ordered liberty." Hence the States need not use the grand jury.
He made no such statement however as to the right of the defendant to be
informed of the nature and cause of the accusation against him.
Suppose the constitutional guaranty of indictment by grand jury for
infamous crimes were abolished by constitutional amendment. Could a
defendant still claim grand jury indictment under the due process clause
of the fifth amendment? It would seem not, as the Supreme Court has held
that due process of law under the fourteenth amendment does not require
a grand jury in state court proceedings. 8 6
184. United States v. Woodner, 189 F. Supp. 355, 358 (S.D.N.Y. 1960). The case
was followed in United States v. Lippi, 193 F. Supp. 441, 442 (D. Del. 1961); United
States v. Lippi, 190 F. Supp. 604, 607 (D. Del. 1960).
185. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
186. Hurtado v. People of California, 110 U.S. 516 (1884). See also Dowdell v.
United States, 221 U.S. 325, 332 (1911).

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INDICTMENT AND INFORMATION IN FEDERAL CRIMINAL

Rule 7 of the Federal Rules of Criminal Procedure, entitled "The

I. HISTORY OF DRAFTING OF RuLE

The first draft of the Federal Rules of Criminal Procedure, dated

FEDERAL INDICTMENT AND INFORMATION

Rule 7 (a) (2) entitled "Information and Complaint; Signature and

Waiver of indictment was favored by many groups and persons who

SYRACUSE LAW REVIEW

The Committee for the Southern District of Florida suggested specific

FEDERAL INDICTMENT AND INFORMATION

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

6. Supra note 4, at 67.

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

E. Baumont of the Southern District of California would omit the word

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

SYRACUSE LAW REVIEW

THE CONSTITUTIONAL RIGHT TO BE INFOPIED OF THE

Supra note 22, at 31.

FEDERAL INDICTMENT AND INFORMATION

amendment provision on the right to be informed of the nature and cause

The constitutional right extends to misdemeanors as well as felonies. 40

SYRACUSE LAW REVIEW

An indictment for subornation of perjury committed before a grand

FEDERAL INDICTMENT AND INFORMATION

for committing the substantive offense.5 3 An indictment for violation of

"The general rule is applied to an indictment more strictly." 55 The

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

to apply for a bill of particulars. The defendant can resort to motion in

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

SYRACUSE LAW REVIEW

The Supreme Court has stated by Justice Joseph R. Lamar

the citizen the

nearest practicable safeguard

against malicious accusations. He cannot be tried on an information unless

THE CONSTITUTIONAL RIGHT TO INDICTMENT BY A GRAND JURY

The fifth amendment provides: "No person shall be held to answer

FEDERAL INDICTMENT AND INFORMATION

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

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The legislative authority not being competent

to authorize an amendment so as to convert a void into a valid indictment,

FEDERAL INDICTMENT AND INFORMATION

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

Since the caption of an indictment is not a part of the indictment it

In a prosecution for making a threat against the life of the President,

States, 207 F.2d 730, 731 (9th Cir. 1953).

SYRACUSE LAW REVIEW

FEDERAL INDICTMENT AND INFORMATION

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