Page:Federal Reporter, 1st Series, Volume 1.djvu/439

 UNITED 8XATB8 V. NOELKE. i'àl �were used in reference to tickets, prizes and drawings oE and in a lottery, we think that the defeot is not available to the defendant after verdict. �By Eev. St. § 1025, it is provided : "No indictment found and presented by a grand jury, in any district or circuit or other court of the United States, shall be deemed insufficient ; nor shall the trial, judgment, or other proeeeding thereon, be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the de- fendant." This statute was passed in 1872, being the eighth section of "An act to further the administration of justice," and while its operation is necessarily limited by that provis- ion of the constitution which secures to every person accused the right "to be informed of the cause and nature of the ac- cusation," which bas been held to mean that the ofifence must be set out "with clearness and ail necessary certainty to apprise the accused of the crime with which he stands charged, " {U. S. v. Cruikshank, 92 U. S. 542-568.) yet we think that the informality of the averment, that the expressions used in the paper set forth were used conceming a lottery, was one which it was competent for congress to allow the accused to waive by going to trial on the indictment, and that this kind of imperfect and informai averment of a fact essential to make the ofifence complete, was one of those "matters of form" designed by the statute to be disre- garded, when it appears that the defendant was not prejudiced thereby. �It is not the case of an entire want of an averment of a material fact, but rather a case of an informai averment of suoh fact, and yet the averment is such that no person of ordinary intelligence would fail to understand from reading the indictment that the meaning was that these expressions were void with reference to a lottery. The design of the stat- ute was to discourage the practice on the part of defendants of lying by till after trial and verdict, and then in giving as ground for arrest of judgment mere defects of form, where to ail reasonable certainty they had not been misled or preju- diced. And, whatever might be the effeot of this defect in tha ��� �