(dissenting):
Under 22 D.C.Code § 2901 (1961), robbery may be perpetrated “by force or violence” or “by putting in fear.” At common law the force or violence had to be “against resistance,” but the crime has been expanded under the District of Columbia Code to include “sudden or stealthy seizure or snatching.” The Government’s proof in this case was of a robbery by “sudden or stealthy seizure or snatching,”1 and the trial judge in*266structed the jury to find the defendant guilty of robbery if it found he had suddenly or stealthily seized or snatched the victim’s purse.2 The indictment charged, however, that appellant stole “by force and violence and against resistance and by putting in fear * * Completely omitted was the part of the statute encompassing the acts appellant was ultimately found to have committed. Under the circumstances, I respectfully submit the conviction should not stand.
It is true, of course, that under the Federal Rules of Criminal Procedure technical deficiencies in the pleadings are to be ignored. Rule 52(a), Fed.R. Crim.P. “But the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules.” Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959). I consider the departure from the rules in this case more than technical. Here the grand jury completely excluded from the indictment the very language of the statute on which the Government relied for conviction. Here the court, in charging the jury, inserted the excluded language and told the jury it might convict on the basis thereof. Since the Government offered no evidence except such as would support the charge contained in the ex-eluded language, the predicate for the jury’s action in convicting the defendant seems obvious.
It may be true, as the Government suggests, that the indictment would have been sufficient had it only charged a taking “by force or violence.” But here the indictment set forth the specific means by which force and violence were supposedly applied: “against resistance.” This committed the Government to proof of the crime of robbery “against resistance.”3 In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the indictment charging a violation of the Hobbs Act4 alleged extortion affecting “interstate commerce between various points in the United States and the site of his plant for the manufacture or mixing of ready mixed concrete, and more particularly, from outside the State of Pennsylvania into the State of Pennsylvania.” Id. at 213, 80 S.Ct. at 271. Evidence was introduced tending to show an effect upon interstate commerce, not only from outside the state in, but from inside out, and the judge charged the jury that the defendant’s guilt could be rested on shipments either way. The Supreme Court reversed. It “assumed that under an indictment drawn in general terms a conviction might rest upon a showing that commerce of one kind or *267another had been burdened,” but it held that, since interference with commerce was an essential element of the crime, “[i]t follows that when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another * * Id. at 218, 80 S.Ct. at 274.5
The majority distinguishes Stirone on the ground that the prosecution there relied at trial “on a complex of facts distinctly different from that which the grand jury set forth in the indictment.” The only difference in Stirone between the facts alleged in the indictment and the facts proved on trial was that evidence relating to an effect upon interstate exportation not alleged in the indictment was offered, on trial. The trial facts as to the extortion, which was the heart of the crime, and the interstate importation were covered by the indictment. Even with this relatively small amount of variance, the Court dismissed the indictment, stating:
“ * * * The grand jury which found this indictment was satisfied to charge that Stirone’s conduct interfered with interstate importation of sand. But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone’s conduct would interfere with interstate exportation * * *. And it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned. * * * ” 361 U.S. at 217, 80 S.Ct. at 273.
In appellant’s case, the indictment charged a taking “against resistance,” whereas the proof on trial showed a totally different complex of facts involving a taking by stealth. The difference between taking “against resistance” and taking “by stealth” cannot be obscured by invoking the generic term “violence” used in the statute. The two forms of taking denounced in the statute require proof by radically distinct sets of facts. Indeed, the form ultimately proved, but not charged, here — a taking “by stealth” —only became “violent” when Congress decided to make what had been larceny at common law into robbery, punishable by a far more severe sentence.6
The only legal assumption that can be made from the omission of the statutory language which covers appellant’s acts is that the evidence before the grand jury persuaded it that there was probable cause for charging the defendant with robbery “against resistance” or by “put*268ting in fear,” but not “by sudden or stealthy seizure or snatching.”7 The only proper course for the Government, once it became aware of the disparity between charge and proof, was to resubmit the case to the grand jury. Instead, it proceeded to trial. Of course, it may well be that the defect did not become apparent to the Government until after the trial. In either event, however, this court encourages disregard of the grand jury process by refusing to insist upon the proper procedure. Reversal of this conviction and dismissal of the indictment would, of course, leave the Government free to re-indict and re-try appellant according to law. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).
I respectfully dissent.
. The victim was asked: “Then it is true that you never actually saw your wallet taken?” She answered: “No, I didn’t see it taken.” She did not remember even seeing the defendant around her. (Tr. 31.)
. The judge instructed the jury that it should find the defendant guilty as charged if, among other things, it found that he took the wallet “by force and violence, or against resistence, or by putting in fear, or sudden and stealthy seizure * * (Tr. 296.)
. To this extent at least, the indictment provides its own bill of particulars. And it is hornbook law that when a bill of particulars is provided, the Government is bound by it. See 4 Wharton, Criminal Law and Procedure § 1870 (Anderson ed. 1957). See also United States v. Haskins, 6 Cir., 345 F.2d 111, 114 (1965); United States v. Neff, 3 Cir., 212 F.2d 297, 309 (1954); Land v. United States, 4 Cir., 177 F.2d 346, 348-349 (1949); Bryan v. United States, 5 Cir., 175 F.2d 223, 224 (1949), affirmed, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335, rehearing denied, 338 U.S. 957, 70 S.Ct. 491, 94 L.Ed. 590 (1950).
. 62 Stat. 793,18 U.S.C. § 1951:
“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
“(b) As used in this section—
* ifc * * *
“(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
. Mr. Justice Black’s statement in Stirone regarding Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), relied upon by the majority, is applicable here: “[T]he error cannot be dismissed as merely an insignificant variance between allegation and proof and thus harmless error as in Berger v. United States, 295 U.S. 78 [55 S.Ct. 629, 79 L.Ed. 1314]. The crime charged here is a felony and the Eifth Amendment requires that prosecution be begun by indictment.” 361 U.S. at 215, 80 S.Ct. at 272.
. The majority suggests that the record here “virtually negatives prejudice” because appellant’s counsel, in arguing the case to the jury, stated: “Now, the crime of robbery as the Judge will instruct you, must be some kind of a taking with a force or violence, whether against resistance or by a sudden or stealthy seizure or by putting someone in fear.” (Tr. 266.) Without attempting to characterize counsel’s action in so doing, it is sufficient to say that defense counsel, like the prosecutor and the court, is unable to amend the grand jury’s indictment. In United States v. Norris, 281 U.S. 619, 621, 50 S.Ct. 424, 74 L. Ed. 1076 (1930), there was filed “a stipulation of facts which it was agreed should be taken to be true and of record with like effect as if set forth in the indictment.” With reference to this stipulation of counsel, the Court held: “[T]he stipulation was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence. If the stipulation be regarded as adding particulars to the indictment, it must fall before the rule that nothing can be added to an indictment without the concurrence of the grand jury by which the bill was found.” Id. at 622, 50 S.Ct. at 425.
. In reversing convictions in six different cases, the Supreme Court said:
“ * * * To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand
jury was designed to secure. For a defendant could then be convieted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. * * * ”
Russell v. United States, 369 U.S. 749, 770, 82 S.Ot. 1038, 1050, 8 L.Ed.2d 240 (1962).