Cited by

Relying upon Elliott and State v. Erickson, 129 N.H. 515 (1987), the defendant contends that the amendment of the time periods here falls into the third category and was not permissible.

A defendant “has a right to rely upon the information contained in an indictment in preparing his defense, and a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” State v. Erickson, 129 N.H. 515, 519 (1987) (quotation omitted).

There is no dispute that the defendant has a constitutional right to have a grand jury consider the evidence and decide whether or not to return an indictment against him.

for any offense punishable by imprisonment for more than one year,” State v. Erickson, 129 N.H. 515, 518 (1987); see also State v. Smith, 144 N.H. 1, 4 (1999), which indictment “must give the *231 defendant enough information to allow him to prepare for trial, and it must include all of the elements which constitute the offense charged,” Shannon, 125 N.H. at 664 (quotations and citations omitted).

*489 Trial courts may amend indictments in form, but not in substance.

We have generally referred to allegations in an indictment as being either matters of form or matters of substance, in accordance with the rule that indictments “may be amended in form, but not in substance.” State v. Erickson, 129 N.H. 515, 519 (1987).

We have held that RSA 601:1 should be considered in conjunction with Part I, Article 15 of the New Hampshire Constitution.

The defendant invokes the well-settled rule that indictments brought by a grand jury cannot be amended freely, and may be amended only as to form, not substance.

at 764-65, 585 A.2d at 307; State v. Erickson, 129 N.H. 515, 519, 533 A.2d 23, 25 (1987).

There is no dispute that the defendant has a constitutional right to have a grand jury consider the evidence and decide whether or not to return an indictment against him.

It is well-settled that a trial judge cannot freely amend indictments brought on the oath of a grand jury.

Relying on our holding in State v. Erickson, 129 N.H. 515, 533 A.2d 23 (1987), that an allegation in an indictment which specifies a statutorily defined variant of a material element of the crime effectively circumscribes the scope of the charge, the defendant characterizes as an “amendment” of the anal intercourse indictment the instruction on transferred intent.

State v. Johnson, 130 N.H. 578, 585, 547 A.2d 213, 217 (1988); State v. Erickson, 129 N.H. 515, 519, 533 A.2d 23, 25 (1987).

The defendant argues that Allen stands only for the proposition that an indictment for attempted murder need not specify whether the completed act would have been murder in the first or second degree, and that the State in this case, as in State v. Erickson, 129 N.H. 515, 533 A.2d 23 (1987), and in Elliott, was bound by the terms of the indictment.

State v. Erickson, 129 N.H. 515, 519, 533 A.2d 23, 25 (1987) (court cannot permit defendant to be tried on charges not made in the indictment against him).

That statute guarantees individuals the right to an indictment by a grand jury before they may be tried for any offense punishable by imprisonment for more than one year.

While we have noted that indictments must conform to the requirements of part I, article 15 of the New *476 Hampshire Constitution, see State v. Erickson, 129 N.H. 515, 518-19, 533 A.2d 23, 24-25 (1987), we have also found that harmless surplusage does not invalidate the constitutionality of indictments, State v. Wong, 125 N.H. 610, 623, 486 A.2d 262, 270 (1984).

“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).