However, minor variations between indictment and proof, such as clerical errors as to time or place, cannot be fatal unless prejudice be established. Whiteside v. United States, 8 Cir., 1965, 346 F.2d 500, cert. denied, 384 U.S. 1023, 86 S.Ct. 1946, 16 L.Ed.2d 1025; Lund v. United States, 8 Cir., 1927, 19 F.2d 46. Here no possible prejudice has or could be shown. Appellant's next contention under this heading is his claim that the government failed to prove any actual theft from the mail.

Stillman v. United States, 9 Cir., 1949, 177 F.2d 607, 611 and cases cited. Ukichi v. United States, 9 Cir., 1922, 281 F. 525, 527, cert. denied, 260 U.S. 729, 43 S.Ct. 92, 67 L.Ed. 485; United States v. Zambito, 4 Cir., 1963, 315 F.2d 266, 269, cert. denied, 373 U.S. 924, 83 S.Ct. 1524, 10 L.Ed.2d 423; Lucas v. United States, 1951, 88 U.S.App.D.C. 160, 188 F.2d 627, 628; Lund v. United States, 8 Cir., 1927, 19 F.2d 46; Goulson v. United States, 6 Cir., 1926, 16 F.2d 44; Adams v. United States, 5 Cir., 1917, 246 F. 830. United States v. Denny, 7 Cir., 1947, 165 F.2d 668, cert. denied, 1948, 333 U.S. 844, 68 S.Ct. 662, 92 L.Ed. 1127.

As the 1962 date had not yet arrived, and as he was not in the business before 1961, the intent of the indictment could not have misled anyone. Rule 52(a), F.R.Cr.P.; Lucas v. United States, 88 U.S.App.D.C. 160, 188 F.2d 627, 628 (1951); Lund v. United States, 19 F.2d 46, 47 (8th Cir., 1927). Cf., Stillman v. United States, 177 F.2d 607, 611 (9th Cir., 1949). Nor is there any conceivable merit in the final argument that the District Court erred when midway through the trial it dismissed a juror who belatedly admitted in chambers that he had not truthfully responded to the Judge's inquiry on voir dire as to whether a federal gambling stamp had been issued to him or to a member of his family.

The cases make clear that the caption is not a controlling factor and that erroneous recitals therein do not vitiate an indictment; furthermore, that a distinction must be drawn between the body (the charging part) and its caption. Carney v. United States, supra; Brown v. Hudspeth, 10 Cir., 103 F.2d 958; Edgerton v. United States, 9 Cir., 143 F.2d 697; United States v. Fawcett, 3 Cir., 115 F.2d 764, 132 A.L.R. 404; Barnard v. United States, 9 Cir., 16 F.2d 451, certiorari denied 274 U.S. 736, 47 S.Ct. 575, 71 L.Ed. 1316; United States v. Bornemann, 9 Cir., 35 F. 824; United States v. Clark, D.C., 125 F. 92; Lund v. United States, 8 Cir., 19 F.2d 46; Simmons v. United States, 8 Cir., 18 F.2d 85. For cases holding that mere clerical errors in indictments are not fatal, even when in the body thereof, see Lund v. United States, supra, this note; Iponmatsu Ukichi v. United States, 9 Cir., 281 F. 525, certiorari denied 260 U.S. 729, 43 S.Ct. 92, 67 L.Ed. 485; Hogue v. United States, 5 Cir., 192 F. 918; United States v. Fawcett, supra, this note. The date of February, 1945 appearing in the caption should have been February, 1946.

In general, an indictment must contain sufficient allegations to inform the accused of the nature of the offense and sufficiently apprise him of the charges against him so that he may properly prepare his defense, and, if convicted, the judgment rendered will be a bar to another prosecution for the same offense. Rosen v. United States, 161 U.S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606; Lund v. United States (C.C.A.) 19 F.2d 46. In addition to the authorities already cited, Revised Statutes, § 1025 (title 18, USCA § 556) provides: "No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant."

In charging a statutory offense it is ordinarily sufficient to charge it in the words of the statute. Baas et al. v. United States (C.C.A.) 25 F.2d 294; United States v. Brand (D.C.) 229 F. 847; Newton Tea Spice Co. v. United States (C.C.A.) 288 F. 475; Lund v. United States (C.C.A.) 19 F.2d 46; Blain v. United States (C.C.A.) 22 F.2d 393; Olmstead v. United States (C.C.A.) 29 F.2d 239. Accordingly the allegation that the defendants operated a radio apparatus for which a radio license was required by the Radio Act of 1927, without first having obtained an operator's license seems to us to have incorporated by reference the provisions of section 1 requiring a station license in case of an apparatus, the effects of which extend beyond the borders of the state. The indictment was therefore sufficient in form and fairly notified the defendants of the charge which they had to meet.

He contends that these counts are fatally defective because each of them fails to set forth the details of the alleged scheme to defraud charged to the defendant. To be legally sufficient an indictment must contain sufficient allegations to inform the defendant of the nature of the offense and sufficiently apprise him of the charges against him so that he may prepare his defense, and if he is convicted, the judgment rendered against him will be a bar to a second prosecution for the same offense. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606; Lund v. United States, 8 Cir., 19 F.2d 46; Anderson v. United States, 6 Cir., 215 F.2d 84. The elements of the offenses alleged in Counts I to XII, inclusive, are (1) the existence of a scheme to defraud, (2) the use of the mails for the purpose of carrying out the scheme.

"In general, an indictment must contain sufficient allegations to inform the accused of the nature of the offense and sufficiently apprise him of the charges against him so that he may properly prepare his defense, and, if convicted, the judgment rendered will be a bar to another prosecution for the same offense. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606; Lund v. United States [8 Cir.] 19 F.2d 46."

As such, the error is not fatal to the Indictment if there is no prejudice to the substantial rights of the defendant. See 11 Cyclopedia of Federal Procedure, 3d Ed., § 42.78; Lund v. United States, 8 Cir., 19 F.2d 46; Adams v. United States, 5 Cir., 246 F. 830. A mistake of form, resulting in no substantial harm to the defendant, should not be permitted to retard or defeat the administration of justice. Compare Lucas v. United States, 88 U.S. App. D.C. 160, 188 F.2d 627.