The decision in In re Wilkie followed the case of United States v. Dolla, which, as stated, was rejected by the Supreme Court in the Tutun case. Because of the decision in the latter case the question was left open in the case of In re Hullen, 124 Cal.App. 271 [ 12 P.2d 487], where the appeal was dismissed because not taken in time. The decision in Tutun v. UnitedStates indicates the correct rule, namely, that the applicant in a naturalization proceeding is entitled to the appropriate remedies available to litigants in any action or proceeding in the courts of the state, including the right of appeal.

See: United States v. Dockery, 417 F.2d 330, 332 (4th Cir. 1969); United States v. Edwards, 366 F.2d 853, 868 (2d Cir. 1966); cert. den. Jakob v. United States, 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782; United States v. Dardi, 330 F.2d 316, 330 (2d Cir. 1964), cert. den. 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed. 2d 50; United States v. Kahaner, 317 F.2d 459, 476 (2d Cir. 1963), cert. den. Corallo v. United States, 375 U.S. 835, 84 S.Ct. 62, 11 L.Ed.2d 65. Cf. United States v. Dopf, 434 F.2d 205 (5 Cir. 1970).

The case is readily distinguishable from Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), strongly relied upon by appellants. What happened here is more analogous to remarks which came under attack and were held nonprejudicial in United States v. Edwards, 366 F.2d 853, 871 (2d Cir. 1966), cert. denied, sub. nom., Jakob v. United States, 386 U.S. 908, 87 S.Ct. 852, 17 L. Ed.2d 782, and Parness v. United States, 386 U.S. 919, 87 S.Ct. 882, 17 L.Ed.2d 790 (1967); Sterling v. United States, 333 F.2d 443, 447-450 (9th Cir. 1964); United States v. Wright, 309 F.2d 735, 738-739 (7th Cir. 1962), cert. denied, 372 U.S. 929, 83 S.Ct. 873, 9 L.Ed. 2d 733 (1963); Homan v. United States, 279 F.2d 767 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). Here, in accordance with the course pursued in Edwards, Sterling and Wright, supra, Judge Collinson instructed the jury that a defendant cannot be compelled to take the witness stand and that the jurors should not permit the failure to testify to influence them in arriving at a verdict.

In view of the short period of the operation of the Bettendorf store, and the testimony of the appellants' employee Dorothy Walton who was hired by them for the specific purpose of conducting mailings during this period, we cannot say that the appellants were misled or prejudiced by the variance between the proof and charges in the indictment. United States v. Edwards, 2 Cir., 1966, 366 F.2d 853, 871-872, cert. denied, sub nom. Jakob v. United States, 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782. Cf., United States v. Doyle, 2 Cir., 1965, 348 F.2d 715, 719, n. 3, cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed. 2d 84. Appellants rely upon United States v. Critchley, 3 Cir., 1965, 353 F.2d 358, 361-362, to support their contention that the indictment was amended by the variance and that the variance was prejudicial.

See United States v. Alexandro, 675 F.2d 34 (2d Cir. 1982); United States v. Mallah, 503 F.2d 971 (2d Cir.), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1974); United States v. Edwards, 366 F.2d 853, cert. denied sub nom. Jakob v. United States, 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782 and cert. denied sub nom. Parness v. United States, 386 U.S. 919, 87 S.Ct. 882, 17 L.Ed.2d 790 (1966).