pany, 15 neither is it a prejudicial error to describe a railroad company by the name of its lessor.16 When it is proved, that the names alleged to be unknown, were in fact known by the grand jury, there is a fatal variance.17 The burden of proof is upon the defendant to show such knowledge on the part of the grand jurors; 18 but if the indictment shows such knowledge conclusively it is fatally repugnant.19 Upon an indictment for conspiracy such an objection is disregarded.20 § 4971. Repugnancy in indictments. A repugnancy vitiates the indictment if it is contained in the description of the substance of the offense charged.1 Otherwise it may be rejected as surplusage.2 Repugnancy in allegations of time is rarely fatal. Repugnancy consists in two inconsistent allegations which destroy the effect of each other.4 Indictments were bad for repugnancy when they charged without further averments, that the defendant purchased his shares of stock in a national banking association and held them in trust for the association,5 that he forged a draft of the United States by forging an endorsement thereupon; that he conspired to conceal from himself as trustee in bankruptcy assets of the bankrupt; 7 but not that the defendants conspired to defraud certain persons "by dealing and pretending to deal in what is commonly called green articles, and Spurious Treasury notes." A solecism sanctioned by usage, which when lit 15 Putnam v. U. S., 162 U. S. 687. 16 Hoke v. U. S., 227 U. S. 308, 324. 17 U. S. v. Reilly, 74 Fed. 210. 18 Coffin v. U. S., 156 U. S. 432, 39 L. ed. 431; Jacobs v. U. S., C. C. A., 161 Fed. 694; Roberts v. U. S., C. C. A., 248 Fed. 873. 19 Larkin v. U. S., C. C. A., 107 Fed. 697. 20 Jones v. U. S., C. C. A., 179 Fed. 584. $4971. 1 Lehman v. U. S., C. C. A., 127 Fed. 41, 45. erally analyzed contains a repugnancy; but which, by supplying an ellipsis that naturally suggests itself, is readily comprehensible; does not vitiate an indictment. Such are the expressions, "false diamonds," 10 "counterfeited United States note, "11 "spurious Treasury notes. 12 Such a defense cannot be raised for the first time upon a writ of error.18 § 497j. Surplusage in indictments. Surplusage does not vitiate an indictment. It may be disregarded and need not be proved. But when there is a needless specification of a place, this should be proved; since otherwise the accused might have been misled in preparing his defense.3 The courts have treated as surplusage: unnecessary charges of intent, or that an act was performed feloniously, a reference to several sections of a statute, only one of which applied, when the count stated facts sufficient to constitute a crime without any reference; the words "so" and "aforesaid" in the introduction to a count "and so the grand jurors do further present as aforesaid."7 6 § 498. Signature of indictments. The proper practice is for the District Attorney of the United States, for the district where an indictment is found, to sign the same; for otherwise there is nothing to show the court that he authorizes the criminal prosecution. "There appears to be no power, by statute or usage, conferred on the courts of the United States to recognize a suit, civil or criminal, as legally before them in the name of the United States, except the same is instituted and prosecuted by a District Attorney legally appointed and com 9 U. S. v. Howell, 11 Wall. 432, 436, 20 L. ed. 195. 10 Ibid. 11 Ibid. 12 Lehman v. U. S., C. C. A., 127 Fed. 41, 45. 18 Sims v. U. S., C. C. A., 121 Fed. 515. § 497j. 1 Hall v. U. S., 168 U. S. 633, 42 L. ed. 607; U. S. v. Moody, 164 Fed. 269; Davey v. U. S., C. C. A., 208 Fed. 237; Finnegan v. U. S., C. C. A., 231 Fed. 561; U. S. v. Ford, 263 Fed. 449; Nichamin v. 2 Ibid. 3 Naftzger v. U. S., C. C. A., 200 Fed. 494, 497; State v. Crogan, 8 Iowa 523. 4 Nichamin v. U. S., C. C. A., 263 Fed. 880. 5 Davey v. U. S., C. C. A., 208 Fed. 237. 6 U. S. v. Ford, 263 Fed. 449. 7 Finnegan v. U. S., C. C. A., 231 Fed. 561. missioned conformably to the statute."1 It has been said: "The signature of a District Attorney constitutes no part of an indictment, and is only necessary as evidence to the court that he is officially prosecuting the delinquents conformably to the duty imposed upon him by statute." Where the objection appeared not to have been specially taken by demurrer, or otherwise, before the trial, it was held that the signature of the Assistant United States Attorney was sufficient. The absence of any signature to the indictment, which was returned at a time when the office of District Attorney was vacant, was held to be no ground for a motion in arrest of judgment, when the case had been duly prosecuted by the officer subsequently appointed.* $499. Indorsements of indictments. The indictment should be endorsed with the words "a true bill," and the endorsement signed by the foreman of the grand jury. In England, this was essential to the validity of the document. "The endorsement is parcel of the indictment and the perfection of it." There the practice was, when the grand jury refused to find an indictment, to endorse thereupon "ignoramus," or sometimes, in place of the latter, "not found"; and all the bills presented to them were returned to the court. "In this way the endorsement became the evidence, if not the only evidence, to the court of their action. But in this country the common practice is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment. Thus they return into court only those accusations which they have approved, and the fact that they thus return them into court is evidence of such approval, and the formal endorsement loses its essential character." 2 The § 498. 1 U. S. v. McAvoy, 18 How. Pr. 380, 382, 4 Blatchf. 418, Fed. Cas. No. 15,654, per Betts, J. 2 U. S. v. McAvoy, 18 How. Pr. 380, 382, 4 Blatchf. 418, Fed. Cas. No. 15,654, per Betts, J. 3 Caha v. U. S., 152 U. S. 211, 221, 38 L. ed. 415, 419. 4 U. S. v. McAvoy, 18 How. Pr. 380, 4 Blatchf. 418, Fed. Cas. No. 15,654. § 499. 1 King v. Ford, Yelverton, 99. 2 Frisbie v. U. S., 157 U. S. 160, 163, 39 L. ed. 657, 658, per Brewer, J. statute upon which the indictment is founded is often endorsed thereupon. This is convenient, and in case of doubt, might possibly be as assistance in determining what statute was charged to have been violated.5 Such an entry cannot enlarge or limit the effect of the indictment.6 The history of the case is sometimes endorsed upon the indictment, either by the prosecutor or the clerk, so as to show what decisions have been made by the court and the result of previous trials before juries. The inspection of such an endorsement by the jury may be a ground for a new trial." Where the objection was not taken by demurrer, it was held that the omission of the endorsement was a defect of form, which did not invalidate the indictment. In case of a capital offense, it is the usual custom to endorse, upon the indictment, the list of the witnesses for the prosecution, which the Revised Statutes require shall be delivered to the defendant.9 Such an omission is a defect in form, which is waived when the objection thereto is not raised until after the trial.10 § 499a. Margin of indictments. It is sometimes the custom of a public prosecutor or his assistants to make memoranda upon the margins of indictments, for convenience of reference. This is often done to indicate by what statute the indictment is supported. Such marginal memoranda are no part of an indictment.1 A reference upon the margin to a statute does not preclude the Government from sustaining the indictment under any statute within which it is brought by its allegations.2 § 500. Duplicity in indictments. No single count in an indictment can be duplex; that is, charge two distinct and separate crimes.1 8 U. S. v. Nixon, 235 U. S. 231, 235, 59 L. ed. 207. 4 Ibid. 5 Ibid.; U. S. v. Morgan, C. C. A., 148 Fed. 189, 191. 6 U. S. v. Nixon, 235 U. S. 231, 235, 59 L. ed. 207. 7 Ogden v. U. S., C. C. A., 112 Fed. 523. 8 Frisbie v. U. S., 157 U. S. 160, 39 L. ed. 657. See U. S. v. Cornell, 2 Mason, 91 Fed. Cas. No. 14,868. 9 U. S. R. S., § 1033; quoted supra, § 482. 10 Fisher v. U. S., 1 Oklahoma 252. See Hickory v. U. S., 151 U. S. 303, 307, 38 L. ed. 170, 173. § 499a. 1 Williams v. U. S., 168 U. S. 382, 42 L. ed. 509. 2 Ibid. § 500. 1 U. S. v. Patty, 2 Fed. 664; John Gund Brewing Co. v. U. S., C. C. A., 204 Fed. 17; Ammerman v. U. S., C. C. A., 216 Fed. The reason for the rule against duplicity is that the verdict must be an entirety and that the jury cannot split a count in an indictment and find the accused guilty of a part and not guilty of the rest.2 Separate criminal acts committed in a single transaction may be split into as many counts as the prosecutor thinks necessary; so that if the facts as proved are insufficient for conviction of one count the Government may have the benefit of them upon another charge to which they are applicable.3 The section of the Revised Statutes concerning the joinder of several charges in separate counts, in the same indictment, does not qualify the rule as it prevailed at common law with reference to the uniting of charges in the same indictment in different counts, or the charging as a single offense in one count, a single act or transaction, which might also be treated as involving several distinct offenses.5 The prosecutor is at liberty to charge in a single count as a single offense a single act or transaction in violation of law, although that act involves several similar violations of law with respect to several different persons. Where the statute creating an offense enumerates several things by the use of the disjunctive, "or," an indictment which charges two or more thereof, joined with the conjunctive "and" is not bad for duplicity.7 8 It is not duplicitous to charge in a single count the doing of an act and causing the same to be done; the doing and the attempting to do the same act; nor a single conspiracy to 326; Lewellen v. U. S., C. C. A., 223 2 State v. Smith, 61 Maine 386; approved by Hough, J.; U. S. v. McAndrews & Forbes Co., 149 Fed. 823, 832. 3 U. S. v. Dickinson, 2 McLean, 328; Fed. Cas. No. 14,958; U. S. v. Howell, 65 Fed. 402; Regina v. Truman, 8 Car. & P. 727; Orth v. U. S., C. C. A., 252 Fed. 566. 4 U. S. R. S., § 1024; quoted infra, $ 501. 5 U. S. v. Scott, 74 Fed. 213, 216, per Taft, J.; U. S. v. Heinze, 161 Fed. 425. 6 U. S. v. Scott, 74 Fed. 213, 215, per Taft, J.; and cases there cited. 7 Ackley v. U. S., C. C. A., 200 Fed. 217; Simpson v. U. S., C. C. A., 229 Fed. 940; U. S. v. Dembowski, 252 Fed. 894; Boone v. U. S., C. C. A., 257 Fed. 963. 8 U. S. v. Janes, 74 Fed. 543, 545; Murray v. U. S., C. C. A., 247 Fed. 874. 9 U. S. v. Dembowski, 252 Fed. 894. |