The grand jury of the [here insert the name of the county, or of the city, or of the city and county, in which the indictment is found], by this indictment, accuse A. B. of the crime of [here insert the name of the crime, if it have one, such as treason, murder, arson, manslaughter, or the like, or if it be a misdemeanor, having no general name, such as libel, assault, or the like, insert a brief description of it, as it is given by statute], committed as follows: The said A. B., on the hundred and case may be] of charged as an offense]. day of eighteen , at the town [or city or village, as the in this county [here set forth the act A. B., District Attorney of the county of See People v. Lenhardt, 104 N. Y. 596; People v. Bellows, 1 How. Pr. (N. S.) 151; People v. Willson, 109 N. Y. 351; People v. Farrell, 28 State Rep. 44; People v. Harris, id. 298; People v. Dumar, 106 N. Y. 510; People v. Willet, 102 id. 246; People v. Conroy, 97 id. 68; People v. Dimick, 107 id. 27; 5 N. Y. Cr. Rep. 187; People v. Menken, 36 Hun, 92; People v. Burns, 53 id. 276; People v. Everest, 51 id. 23; People v. Grimshaw, 33 id. 507; People v. Barber, 48 id. 199; People v. Rich, 2 N. Y. Cr. Rep. 315. § 277. When defendant is indicted by fictitious or erroneous name, his true name may be inserted in subsequent proceedings.—If a defendant is indicted by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it may be inserted in the subsequent proceedings, referring to the fact of his being indicted by the name mentioned in the indictment. See People v. Everhardt, 104 N. Y. 596; Walter v. People, 32 id. 163; Lasure v. State, 19 Ohio, 43; State v. Burns, 8 Nev. 251; Pace v. State, 69 Ala. 231; 44 Am. Rep. 513; People v. Smith, 1 Park. 327; Barnesciotta v. People, 10 Hun, 137; 69 N. Y. 612; People v. Burns, 2 N. Y. Cr. Rep. 398. § 278. Indictment must charge but one crime and in one form, except where it may be committed by different means. The indictment must charge but one crime and in one form, except as in the next section provided: See People v. Dimick, 107 N. Y. 31; People v. Dumar, 106 id. 510; People v. Willson, 109 id. 351; People v. O'Donnell, 46 Hun, 360; People v. Callahan. 29 Hun, 580; People v. Cole, 2 N. Y. Cr. Rep. 109, 110; People v. Ward, 3 id. 484; People v. Lenhardt, 4 id. 326; People v. Powell, id. 586; People v. Klock, 48 Hun, 276; People v. Burns, 53 id. 276; 25 State Rep. 99; People v. Emerson, E id. 467; 53 Hun, 438; People v. Charbineau, 26 id. 491; 115 N. Y. 433; People v. Harris, 28 State Rep. 300; People v. Crotty, 30 id. 44; People v. Everest, 51 Hun, 20; People v. Upton, 38 id. 110; People v. Moore, 37 id. 87. An indictment under the act in relation to lotteries (1 R. S. 666, § 29) charged that the accused “did unlawfully and knowingly offer to vend and to sell, and to barter and to furnish, and to supply and to procure, and to cause to be furnished and procured to and for" C. a lottery ticket. The indictment was assailed for duplicity in that it charged two separate and distinct offenses, i. c., a sale to C. and a sale to some third person for him. Held untenable; that the indictment charged but a single offer to furnish to C. a lottery ticket for a consideration; the fact that the offer gave the choice of modes did not transform it into two separate and distinct offenses. Read v. People, 81 N. Y. 381. An indictment containing two counts, the first charging the defendant with grand larceny, and the second charging him with having received the property alleged in the first count to have been stolen, is not demurrable on the ground that more than one crime is charged therein in violation of sections 278 and 279. Said sections are to be construed together and permit such an indictment. People v. Infield, 1 N. Y. Cr. Rep. 146. $279. Charging crime in separate counts.-The crime may be charged in separate counts to have been committed in a different manner, or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts. See People v. Dimick, 107 N. Y. 31; People v. Willson, 109 id. 351; People v. Dumar, 106 id. 510; People v. Rose, 52 Hun, 35; People v. Everest, 51 id. 20; People v. Klock, 48 id. 276; People v. Burns, 53 id. 276; People v. Emerson, id. 439; People v. O'Donnell, 46 id. 360; People v. Menken, 36 id. 97; People v. Dunn, 90 N. Y. 104; People v. Callahan, 29 Hun, 580; People v. Cole, 2 N. Y. Cr. Rep. 108; People v. Lenhardt, 4 id. 318. If more than one crime be charged, except as permitted by the above section, the proper and only remedy is by demurrer; Code Crim. Proc., §§ 324, 331; People v. McCarthy, 110 N. Y. 314. A count charging the use of different prohibited means to commit a crime is good. People v. Davis, 56 N. Y. 95. A single felony may be charged in different ways in several counts, so as to meet the facts of the case. Harris v. People, 6 Thomp. & Cook, 206. The second count in an indictment may refer to the allegations contained in the first, without repeating them. People v. Graves, 5 Park. 134. The court has discretionary power to compel prosecution to elect one of several counts. Hawker v. People, 75 N. Y. 487. There may be a joinder of various counts stating the same offense distinctly and separately in various ways, so as to meet the evidence, and the court will not put the prosecutor to an election. Nelson v. People, 5 Park. 39; 23 N. Y. 293; Lonergan v. People, 6 Park. 209; 50 Barb. 266. A count charging an assault "with intent to do bodily harm," and also **with intent to kill," is good. The words "to do bodily harm" are mere sur plusage, unless they be added "without justifiable or excusable cause." Dawson v. People, 25 N. Y. 399. A count for poisoning, which charges that the prisoner did administer, and did cause and procure to be administered, etc., is not bad for duplicity. La beau v. People, 6 Park. 371; 33 How. 66. Held, that counts for different offenses of the same grade and subject to the same punishment may be joined. People v. Gates, 13 Wend. 311. Held, also, that counts for embezzlement and larceny may be joined in same indictment. Coats v. People, 4 Park. 662. A count for counterfeiting silver coin may be joined with one for having possession of such coin with intent to utter it, though the punishment be different; but the prosecutor must elect. Queen's Case, 6 C. H. Rec. 63. A count for forging a check may be joined with one for uttering and publishing it, etc. People v. Rynders, 12 Wend. 425. Two distinct offenses requiring different punishments cannot be alleged in the same count. Reed v. People, 1 Park. 481. And if so included and a conviction follows, judgment will be arrested. People v. Wright, 9 Wend. 193. Several distinct misdemeanors may be joined, and the prosecution cannot be put to an election. People v. Costello, 1 Den. 83. A count for selling spirituous liquors without license to divers citizens and to persons unknown, only embraces one offense. People v. Adams, 17 Wend. 475; Hodgman v. People, 4 Den. 235. The joinder of several distinct misdemeanors is not ground for reversal on error, if the sentence be single and appropriate to either of the counts of the indictment. Polinsky v. People, 73 N. Y. 65. A misjoinder of counts charging a misdemeanor and a felony does not enti tle the defendant to have the indictment quashed, except in the discretion of the court. People v. Court of Gen. Sess., 12 Hun, 395. Though an indictment in different counts charge what are technically distinct offenses, yet if it be apparent that each relates to the same transaction, it may be sustained. Taylor v. People, 12 Hun, 212. When but one and the same offense is charged in different counts, the district attorney must be put to an election. Armstrong v. People, 70 N. Y. 38. When an indictment contains a count for rape and one for an assault with intent to commit rape, the district attorney is not bound to elect between them. People v. Satterlee, 5 Hun, 167. When the ownership of property is variously charged in different counts, the district attorney must elect between them. Phelps v. People, 4 Hun, 401. $280. Statement as to time when crime was committed. The precise time at which the crime was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the crime. See People v. Jackson, 111 N. Y. 369; 11 Crim. L. Mag. 223; People v. Emerson, 53 Hun, 440; 20 State Rep. 16; People v. Krank, 12 id. 846; 46 Hun, 634. 1 At common law, the time of the offense must always be alleged, but it is mere form, unless some special reason renders it imperative. 1 Lish. Crim. Proc., $386; 1 Stark. Crim. Plead. 54; Turner v. People, 33 Mich. 363. The doctrine is general that where time is material, it must, to the extent of such materiality, be alleged correctly and proved as laid. 1 Rish. Crim. Proc., $399; Dacy v. State, 17 Ga. 439; State v. Caverly, 51 N. H. 446. An indictment is good if the day and year can be collected from the whole statement, though not specially averred. Gill v. People, 3 Hun, 187; 5 Thomp. & Cook, 308, affirmed 60 N Y. 643. The time and place when and where a crime was committed must be stated with certainty in the indictment, but it is not necessary to prove them as stated, unless they are necessary ingredients. People v. Stocking, 50 Barb. 573; 32 How. 48; 6 Park. 263. $281. Statement as to person injured or intended to be injured.-- When an offense involves the commission of, or an attempt to commit a private injury, and is described with suf ficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material. See People v. Johnson, 5 N. Y. Cr. Rep. 219; 104 N. Y. 213; People v. Dunn, 25 State Rep. 464; 53 Hun, 387; People v. Richards, 5 N. Y. Cr. Rep. 367; 44 Hun, 286; People v. Clements, 5 N. Y. Cr. Rep. 287; Kennedy v. People, 39 N. Y. 245. 282. Construction of words used in indictment. The words used in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning. See People v. Farrell, 28 State Rep. 44; People v. Dunn, 53 Hun, 385, 387; People v. Klock, 48 id. 277; People v. Wise, 3 N. Y. Cr. Rep. 305; 2 How. Pr. (N. S.) 98; People v. Dumar, 106 N. Y. 510. 283. Words used in a statute need not be strictly pursued.- Words used in a statute to define a crime need not be strictly pursued in the indictment; but other words, conveying the same meaning, may be used. See Rapalje's Crim. Proc., § 90; People v. Dimick, 5 N. Y Cr. Rep. 187; 41 An indictment is good if it follows the language of the statute defining the But this rule presupposes that the statute creating the offense is a valid exercise of the legislative power. People v. West, 106 N. Y. 295. The pleader need not use the very words of the statute. People v. Whedon, 2 N. Y. Cr. Rep. 320; Fraser v. People, 54 Barb. 306; People v. Jahne, 103 N. Y. 182. But see People v. Van Pelt, 4 How. Pr. 36. Matter of Gray, 2 If words of similar import are employed it is sufficient. N. Y. Cr. Rep. 306; United States v. Wilson, 24 Fed. Rep. 286; Tully v. People, 67 N. Y. 15. § 284. Indictment, when sufficient. - The indictment is sufficient, if it can be understood therefrom: 1. That it is entitled in a court having authority to receive it though the name of the court be not accurately stated; 2. That it was found by a grand jury of the county, or if in a city court, of the city in which the court was held; 3. That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that it has been found impossible to discover his real name; 4. That the crime was committed at some place within the jur isdiction of the court; except where, as provided by sections one hundred and thirty-three to one hundred and thirty-eight, both inclusive, the act, though done without the local jurisdiction of the county, is triable therein; 5. That the crime was committed at some time prior to the finding of the indictment; 6. That the act or omission, charged as the crime, is plainly and concisely set forth; 7. That the act or omission, charged as the crime, is stated with such a degree of certainty, as to enable the court to pronounc judgment, upon a conviction, according to the right of the case See People v. Reavey, 4 N. Y. Cr. Rep. 14; People v. Buddensieck, 4 N. Y Cr. Rep. 251; 5 id. 71; 103 N. Y. 496; People v. Bowe, 3 id. 160; People Jackson, 111 N. Y. 369; People v. Wise, 3 N. Y. Cr. Rep. 305; 2 How. P (N. S.) 98; People v. Conroy, 97 N. Y. 68; People v. Bowe, 34 Hun, 533; Pe ple v. Deevey, 35 id. 311; People v. Dunn, 53 id. 387; People v. Upton, 38 i 113; People v. Reavey, id. 421; People v. Farrell, 28 State Rep. 44; People Crotty, 30 id. 45; People v. Dimick, 107 N. Y. 30. An indictment is good if it contains sufficient averment to inform defenda of the nature of the accusation against him, to prepare his defense and admit of the record as a bar to a second prosecution for the same offens People v. Farrell, 28 State Rep. 44; Pontius v. People, 82 N. Y. 339; Frazer People, 54 Barb. 306; People v. Dunn, 7 N. Y. Cr. Rep. 189; 53 Hun, 387. |