Biggs, Forman and Freedman, Circuit Judges.
On December 7, 1967, the appellant, Williams, was indicted for the illegal possession of a firearm which had not been registered under the National Firearms Act, 26 U.S.C. §§ 5841, 5851. The indictment in pertinent part read: "That on or about November 7, 1967, in the Borough of Berlin, County of Camden, State and District of New Jersey, James Conrad Williams wilfully and knowingly did possess a firearm, that is, a sawed-off 12-gauge Stevens, Savage Arms Corp., shotgun, having a barrel length of 6 1/2 inches, and an over-all length of 14 1/2 inches, which had not been registered with the Secretary of the Treasury or his delegate, as required by Section 5841, Title 26, United States Code. In violation of Title 26 U.S.C. Section 5851." Williams entered a plea of not guilty.
On January 19, 1968 the United States moved to amend the indictment by deleting the phrase "which had not been registered with the Secretary of the Treasury or his delegate, as required by Section 5841" and substituting in lieu thereof the phrase "for which no tax had been paid as required by Section 5811." Judge Cohen granted the motion and at that time Williams retracted his plea of not guilty and pleaded guilty to the indictment as amended. Ten days later, on January 29, 1968, the decisions of the Supreme Court in Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889, Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 and Haynes v. United States, 390 U.S. at 85, 88 S. Ct. 722, 19 L. Ed. 2d 923, were handed down. On March 3, 1968 Williams moved to withdraw his plea of guilty, relying on the January 29th rulings of the Supreme Court. The court ordered the submission of briefs, heard argument on the motion on May 2, 1968, and denied it. The court thereupon refused to allow the withdrawal of the plea of guilty, found Williams guilty, and sentenced him to eighteen months in prison. Williams has appealed. After argument on the merits of the issues presented by Marchetti, Grosso and Haynes, at our request the parties briefed and argued the issue of whether the indictment was validly amended. We conclude that it was not.
The nature of the amendment briefly can be stated as follows: Section 5851, Title 26, U.S.C., provides in pertinent part: "It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811 * * * or to possess any firearm which has not been registered as required by section 5841." (Emphasis added.)
Section 5841 embodies a registration requirement for "Every person possessing a firearm" who has not complied with certain other provisions of the National Firearms Act among which is the tax section, Section 5811, referred to hereinafter.
Section 5811(a) provides that there shall be levied, collected and paid on firearms a tax at the rate of $200 each and that such tax should be paid by the transferor but if the firearm is transferred without payment of the tax, the transferor and the transferee shall become jointly and severally liable for it.
The penalties are the same for the transgression of either section. See 26 U.S.C. § 5861.
The indictment as it was originally charged a violation of the National Firearms Act because Williams possessed a shotgun " which had not been registered with the Secretary of the Treasury or his delegate as required by section 5841, Title 26, U.S.C. * * *" (Emphasis added.)
The amendment struck out of the indictment the language italicized above and inserted in lieu thereof the words, " for which no tax has been paid as required by section 5811." (Emphasis added.)
We believe that an indictment expires if it be amended in matter of substance other than by the grand jury of the sovereign who returned it.*fn1 Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887); Russell v. United States, 369 U.S. 749, 769-771, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962); United States v. Denny, 165 F.2d 668 (7 Cir. 1948), cert. den. 333 U.S. 844, 68 S. Ct. 662, 92 L. Ed. 1127 (1948); United States v. Critchley, 353 F.2d 358 (3 Cir. 1965). Cf. Jackson v. United States, 123 U.S.App.D.C. 276, 359 F.2d 260, 265 (1966), dissenting opinion of Wright, J. See Crosby v. United States, 119 U.S.App.D.C. 244, 339 F.2d 743 (1964). Cf. Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960).
The United States contends that the validity of the indictment should be upheld primarily for two reasons: First, that Williams expressly consented to the amendment and, second, that our decision in Palumbo v. New Jersey, 366 F.2d 826 (3 Cir. 1966), supporting an amended indictment is in point with the case at bar.
As to the first issue, if the indictment was amended in matter of substance, as we think it was for reasons that will be stated hereinafter, the consent of the accused to the amendment is not relevant. We so held in United States v. Fawcett, 115 F.2d 764, 132 A.L.R. 404 (3 Cir. 1940). That ruling was that an amendment of substance to the body of an indictment violates the Fifth Amendment even if the accused agrees that the facts stipulated should have the same effect as if set out in ...