(dissenting).
Where a general motion to dismiss an indictment is wrongly overruled because an essential element of the offense sought to be charged is omitted but the trial proceeds just as it would have if the indictment had contained the omitted word or words, does the “harmless error statute”, Judicial Code, § 269, 28 U.S.C.A. § 391, forbid the reversal of a conviction for that erorr? A division of opinion in this court developed in Grimsley v. United States, 5 Cir., 50 F.2d 509. The minority reasoning was apparently favored by a unanimous court in Norris v. United States, 5 Cir., 152 F.2d 808, though the decision rested also on another ground. In the present case, heard by three judges, a reargument was ordered before all six judges, to settle the question for this court. We understand the court’s present opinion to mean that the statute does not apply, and that the district court should now sustain the motion and discharge the defendants. So much, however, is said about the charge to the jury that it might be thought that error there is the ground of reversal, and that a retrial with a better charge is to be had. At the conclusion of the charge the judge asked: “Any requests or exceptions from the defendants ?” and their counsel answered “No”. Neither on the first argument nor on the reargument has it been contended that the charge was deficient. The charge on the meaning and application of Section 52 of Title 18 of United States Code Annotated covers three and a half printed pages, and everybody was fully conversant with the case of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330, and the interpretation there given the statute. The judge was trying to follow it, and four able counsel representing the defendants were satisfied with his effort, and still are. The only error is the overruling of the general motion to dismiss, and we recur to that.
We concede that “wilfully” is an important and substantial element of the offense created by Criminal Code, § 20, 18 U.S.C.A. § 52. We concede that the omission of that word from count three of the indictment is not a “defect or imperfection in matter of form only” which the trial judge could disregard by virtue of R.S. § 1025, 18 U.S.C.A. § 556, and that it was error to overrule the general ground of the motion to dismiss that count. Our question is whether this court, as a reviewing *762court, should or should not reverse under the provisions of Judicial Code, § 269, 28 U.S.C.A. § 391, the pertinent part being: “On the hearing of any appeal * * * in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties”. We say that on examining this whole record it appears that the error above stated is a technical one which did not affect the substantial rights of the defendants. It cannot be denied that the trial went forward exactly as it would have if the word “wilfully” had been in the count. It was in fact in the next count of the indictment which charged the same set of facts as a conspiracy to violate Section 20. It is apparent that the omission of it in count three was a mere slip of the pleader. Indeed, the acts alleged as constituting the crime were violent acts of such a sort that they must have been wilful and were calculated to accomplish the deprivation of civil rights which resulted. When the judge came to charge the jury on count three he read Section 20 to the jury and explained it, and charged fully on the element of wilfullness, its importance and.meaning, and no objection was made to the charge. The jury acquitted on the conspiracy count which charged a felony and convicted on count three for the substantive offense, a misdemeanor. This is a logical inconsistency, but a mercy which was in the jury’s power. No ruling during the trial was influenced by the defect in the indictment.
What is a “technical” error? The word is sometimes used to mean frivolous or senseless, but it properly means “relating to some art or skill”. See Webster’s International Dictionary; Funk and Wagnall’s Standard Dictionary. In the statute it means relating to the lawyer’s art, and with reference to an indictment it means skill in criminal pleading. What are the “substantial rights” of one tried for crime? Some are constitutional rights, and they are all substantial. Among them is the right to be indicted by a grand jury for a capital or other infamous crime, under the Fifth Amendment. This is probably not such a crime, being a misdemeanor, but if it be, this constitutional right consists not in having a technically perfect indictment, but in having a grand jury say that the accused shall be prosecuted. That right was enjoyed. The Fifth Amendment also prohibits a second jeopardy for the same offense, and the indictment is important to secure that right. But there can be no question but that this indictment would suffice to show both the offense and the transaction for which these appellants have been convicted. They are safe in that regard. They were entitled under the Sixth Amendment “to be informed of the nature and cause of the accusation”, and the indictment is a usual though not the only means of affording the information. No one can deny that counsel and accused were fully informed that the nature of this accusation was a violation of Section 20, and the particular cause was the acts stated in the indictment. No one could say there was any surprise in this trial. The same amendment guarantees also a jury trial, confrontation, compulsory process and assistance of counsel, all of which were had. Besides the constitutional rights, the accused were of course entitled also to a fair and legal trial in all other respects, concerning which no complaint is made. Guilt was satisfactorily proved. Nothing is wrong save that one word has been left out of the indictment, and everyone who had read and heard read Section 20 knew that it belonged in it; and the case was tried in all respects as if it had been. It is highly “technical” to reverse this case that the word may be supplied and the trial be repeated in just the same way. We think the statute which governs this appellate court forbids our doing this.