Cited by

Amendments that purport to change an element of the offense are invalid, State v. Prevost, 141 N.H. 559, 560 (1997); State v. Bell, 125 N.H. 425, 429 (1984), while amendments that involve merely the form of the indictment are freely allowed and may be made without the need to return to the grand jury, see RSA 601:8 (2001); State v. Spade, 118 N.H. 186, 188 (1978).

RSA 637:11,1(a) (1986 & Supp. 1992); see also State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 116 (1978).

add[s] an offense.’” State v. Johnson, 130 N.H. 578, 585, 547 A.2d 213, 217 (1988) (quoting State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 116 (1978)).

State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 116-17 (1978); State v. Skillings, 99 N.H. 427, 429, 113 A.2d 490, 491 (1955).

State v. Erickson, 129 N.H. at 519, 533 A.2d at 25; State v. Spade, 118 N.H. 186, 189-90, 385 A.2d 115, 116-17 (1978); see State v. Davis, 99 N.H 88, 89, 105 A.2d 47, 48 (1954) (indictment is adequate if it alerts defendant to nature and cause of accusation with enough specificity to enable defendant to prepare defense).

“An indictment may be amended in form, but not in substance.” State v. Erickson, 129 N.H. 515, 519, 533 A.2d 23, 25 (1987) (citing RSA 601:8; State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 116-17 (1978)); State v. Donovan, 128 N.H. 702, 705, 519 A.2d 252, 255 (1986).

State v. Meekins, 127 N.H. 777, 778, 508 A.2d 1048, 1049 (1986) (citing State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 116 (1978)); see State v. Boire, 124 N.H. 622, 474 A.2d 568 (1984).

An indictment may be amended in form, but not in substance.

State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 116 (1978); see also State v. Jenkins, 64 N.H. 375, 376-77, 10 A. 699, 700 (1887); State v. Blaisdell, 49 N.H. 81, 83 (1869).

The failure to name a precise date, therefore, was not an error, see State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 116-17 (1978), and it did not lessen the State’s burden of proof in this case.

The second indictment did not work a surprise on the defendant which prejudiced his defense, cf. State v. Spade, 118 N.H. 186, 385 A.2d 115 (1978) (amended indictment was not a surprise which prejudiced accused’s defense).

If the date an offense is committed is not an essential element of the crime, the State is not necessarily bound to the date specified in the indictment.

State v. Fennelly, supra at 388, 461 A.2d at 1095; State v. Spade, 118 N.H. 186, 189-90, 385 A.2d 115, 117 (1978); see also Berger v. United States, 295 U.S. 78, 82 (1935); United States v. Cosby, 529 F.2d at 146-47.

Our reasoning begins with a consideration of the general rule that “the State is not necessarily bound by a date specified in an indictment when time is not an element of the crime charged and proof that the event happened on the precise day named in the indictment is not required.” State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 117 (1978).

when the circumstances of the case are such that a change must be regarded as a matter of substance, as effecting a change in the offense charged, or as adding an offense.” State v. Spade, 118 N.H. 186, 189, 385 A.2d 115, 116 (1978).

State v. Spade, 118 N.H. 186, 189-90, 385 A.2d 115, 117 (1978); State v. Cote, 113 N.H. 647, 649-50, 312 A.2d 687, 688-89 (1973); 1 R. McNamara, New Hamsphire Practice, Criminal Practice and Procedure § 311, at 196 (1980).

This court held in State v. Spade, 118 N.H. 186, 385 A.2d 115 (1978), that an amendment of a date in the indictment is permissible unless the date itself is an element of the offense charged.

State v. Spade, 118 N.H. 186, 190, 385 A.2d 115, 117 (1978); State v. Linsky, 117 N.H. 866, 879, 379 A.2d 813, 822 (1977).

That the conspirators might not have entered into agreements on the dates listed in the indictment does not necessitate reversal; this is not a case in which time is of the essence of the offense charged.