“unless the inconsistency is material and prejudicial, the variance will be disregarded or the trial judge will allow the indictment or information to be amended to conform to the proof.”
How later courts described this case
- “unless the inconsistency is material and prejudicial, the variance will be disregarded or the trial judge will allow the indictment or information to be amended to conform to the proof.”
- Because time is of essence in a violation for willful late filing of a tax return after April 15, a conflict in dates between indictment and proof dealt with matter of substance, not mere formality
- even in misdemeanor cases, in which indictments are not constitutionally required, any amendment to an indictment without grand jury action results in automatic prejudice to defendant
- conviction reversed because indictment charged failure to file income tax returns by April 15, while evidence showed extension until May 7 and failure to file by latter date
Written by the judges who cited it.
The opinion
ADAMS, Circuit Judge
(dissenting):
I dissent for the reasons set forth by Judge Hunter in his discussion of the harmless error provisions of Rule 52(a).