Notwithstanding the liberality with which indictments may now be construed they must allege facts which show that the crime has been committed. People v. Haight, 26 State Rep. 34.

In People v. Dumar, 106 N. Y. 509, the court say:

"The indictment, therefore, must charge the crime, and it must also state the act constituting the crime. The omission of either of these things would necessarily be fatal to the indictment. If there was no accusation of a crime, the paper, however formal in other respects, would not be an indictment, and so there would be no criminal action. If it contained no statement of the act constituting the crime, there would be no description of the offense, and neither an acquittal nor a conviction would enable the defendant to withstand a further prosecution for the same crime."

The name of the crime in an indictment is mere matter of form which may or may not be stated, and if stated incorrectly, it does not vitiate or control the character of the crime as against specific allegations of fact in the indictment constituting it. People v. Sullivan, 4 N. Y. Cr. Rep. 193, 197.

In People v. Blixen, 112 N. Y. 79, it was held that an indictment which charges the defendant with doing the act constituting the crime is sufficient, although the proof shows that he was absent at the time the crime was committed, but that he counseled, induced and procured its commission.

It is well settled in this state, that where an offense may be committed by doing any one of several things the indictment may, in a single count, group them all together and charge the defendant to have committed them all, and a conviction may be had on proof of the committing of any one. People v. Smith, 6 N. Y. Cr. Rep. 473; Bork v. People, 91 N. Y. 13; 1 N. Y. Cr. Rep. 39; People v. Davis, 56 N. Y. 95; People v. Kelly, 3 N. Y. Cr. Rep. 272; People v. West, 6 id. 382.

If one of several counts in an indictment is good, that is sufficient to sustain a conviction under a general verdict of guilty. People v. Davis, 56 N. Y. 95; People v. Willett, 102 id. 251; People v. Dimick, 107 id. 30; 5 N. Y. Cr. Rep.

187.

$285. Indictment not insufficient for defect of form, not tending to prejudice defendant.- No indictment is insufficient nor can the trial, judgment, or other proceedings thereon be affected, by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.

See People v. Buddensieck, 103 N. Y. 496; People v. Dimick, 107 id. 29; People v. Clements, id. 210; People v. Weldon, 111 id. 575; People v. Willett, 102 id. 34; Sauser v. People, 8 Hun, 302; People v. Haight, 54 id. 9; People v. Dan, 53 Hun, 387; People v. Osterhout, 34 id. 261; 3 N. Y. Cr. Rep. 445; Sanchez v. People, 22 N. Y. 150; Briggs v. People, 8 Barb. 547; People v. Fillger, 24 How. Pr. 341; People v. Gregg, 35 State Rep. 761.

This section is general in its application and is intended to cure defects in firm under the general rules of pleading. People v. Williams, 18 State Rep.

405.

Though the indictment contains neither the title of the action nor a statement of the court in which it is found and presented, yet if it appear that it is found in the proper court and action, and that no prejudice to defendant can ensue, the court is bound, under this section, to disregard such omissions; People v. Peck, 2 N. Y. Cr. Rep. 317.

The name of the crime in an indictment is mere matter of form which may or may not be stated; and if stated incorrectly, it does not vitiate or control the character of the crime as against specific allegations of fact in the indictment constituting it. People v. Sullivan, 4 N. Y. Cr. Rep. 194.

§ 286. Presumptions of law and matters of which judicial notice is taken, need not be stated.-Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment.

See Rapalje's Crim. Proc., §§ 238, 239; People v. Dunn, 53 Hun, 387.

As to judicial notice, see Moak's Van Santv. Pl. 254; 24 Am. L. Reg. (N. S.) 553; Whart. Ev., § 276; 10 Abb. N. C. 107, note; 49 Am. Rep. 201; 89 Am. Dec. 663, note; 4 L. R. A. 33.

§ 287. Pleading a judgment or determination of, o proceeding before, a court or officer of special jurisdic tion. In pleading a judgment or other determination of a cour or officer of special jurisdiction, it is not necessary to state th facts conferring jurisdiction; but the judgment or determina tion may be stated to have been duly given or made. The fact constituting jurisdiction, however, must be established on th trial.

See Eighmy v. People, 79 N. Y. 556; People v. Burns, 53 Hun, 587.

§ 288. Private statute, how pleaded. In pleading a pr vate statute, or a right derived therefrom, it is sufficient to refe to the statute, by its title and the day of its passage, and th court must thereupon take judicial notice thereof. See Code of Civ. Procedure, § 530.

§ 289. Pleading in indictment for libel.-An indictme for libel need not set forth any extrinsic facts for the purpose showing the application of the party libeled, of the defamato matter on which the indictment is founded; but it is sufficie to state generally, that the same was published concerning hi and the fact that it was so published, must be established on t trial.

Matter not libelous on its face must be rendered so by innuendo; People Isaacs, 1 N. Y. Cr. Rep. 148.

$290. Pleading in indictment for forgery, where the instrument has been destroyed, or withheld by defendant. When an instrument, which is the subject of an indictment for forgery, has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment, and established on the trial, the misdescription of the instrument is immaterial. See People v. Badgley, 16 Wend. 53; People v. Kingsley, 2 Cow. 522.

$291. Pleading in indictment for perjury or subornation of perjury. — In an indictment for perjury or subornation of perjury, it is sufficient to set forth the substance of the con troversy or matter in respect to which the crime was committed, and in what court, or before whom, the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment need not set forth the pleadings, record or proceedings with which the oath is connected, nor the commission or authority of the court or person where or before whom the perjury was ommitted.

See People v. Williams, 18 State Rep. 403; Geston v. People, 4 Lans. 487; 61 arb. 35; People v. Robertson, 3 Wheeler Crim. Cas. 180; People v. Clements, 107 1. Y. 205; Tuttle v. People, 36 id. 431; People v. Hoag, 2 Park. 9; Burns v. Pople, 55 Barb. 531; 5 Lans. 189; Campbell v. People, 8 Wend. 636; O'Reilly People, 9 Abb. N. C. 77; Harris v. People, 4 Hun, 1; Ortner v. People, id. ; People v. Siceetman, 3 Park. 358; People v. McKinney, id. 510; People v. Tarner, 5 Wend. 272; People v. Eighmy, 79 N. Y. 556; Stratton v. People, id. 629; People v. Grimshaw, 2 N. Y. Cr. Rep. 390.

292. Upon indictment against several, one or more may be convicted or acquitted. — Upon an indictment against everal defendants any one or more may be convicted or acquitted. See 1 Bish. Crim. Proc., §§ 1036, 1625; Chatterton v. People, 15 Abb. Pr. 147; Tein v. People, 31 N. Y. 229; Rex v. Hempstead, Russ. & Ryan, 344.

In indictments for offenses necessarily joint, joint defendants may be conitted of different grades. Shorese v. Com., 5 Penn. St. 83; R. v. Butterworth, 18. & Ryan, 520.

Where two defendants are charged with murder in the same indictment, the y may find one guilty of murder and another of manslaughter. United tates v. Harding, 1 Wall. Jr. 127; Mack v. State, 32 Miss. 406.

If the act is indivisible, such as conspiracy or riots, then one cannot be conited without the other. Stephens v. State, 14 Ohio, 388; State v. McD., 6 Jeanet, 272; Addis, 334. See White v. People, 32 N. Y. 469.

On an indictment against two for a conspiracy to cheat, the judgment should be against each defendant severally and not against them jointly. March v. People, 7 Barb. 391.

As to separate trials, § 391, post.

CHAPTER III.

AMENDMENT OF THE INDICTMENT.

SECTION 293. When amendment allowed.
294. Trial to proceed.

295. Effect of verdict, etc.

§ 293. When amendment allowed. - Upon the trial of an indictment, when a variance between the allegation therein and the proof, in respect to time, or in the name or description of any place, person or thing, shall appear, the court may, in its judg ment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended, according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable.

See 1 Bish. Crim. Proc. (3d ed.), § 708; 14 Am. Dec. 585, note; Rapalje Crim. Proc., § 109; People v. Jackson, 111 N. Y. 369; People v. Petrea, 92 id 145; Matter of Bain, 121 U. S. 1; Rex v. Wilkes, 4 Burr. 2527; Com. v. Child 13 Pick. 200; Com. v. Mahar, 16 id. 120; Com. v. Drew, 3 Cush. 279; People Campbell, 4 Park. 387; State v. Moore, 24 S. C. 150; 58 Am. Rep. 241.

This section is constitutional. People v. Johnson, 104 N. Y. 216; 5 N. 1 Cr. Rep. 217; 4 id. 591; People v. Herman, 45 Hun, 176; 27 Week. Dig. 11 People v. Richards, 5 N. Y. Cr. Rep. 367; 44 Hun, 286.

An indictment for grand larceny, charging the stealing of “coin,” cannot amended upon the trial, to conform to the proofs, by substituting currency f coin, where the effect of the amendment will be to change the grade of t offense proven from petit to grand larceny. People v. Poucher, 30 Hun, 57 Where, upon a trial for larceny, there is a variance between the allegation a proof as to the owner of the goods alleged to have been stolen, the indictme may be amended in that respect. The name of the owner is no material att bute of the crime charged. People v. Herman, 27 Week. Dig. 118; 45 H 176; State v. Dominique, 39 La. Ann. 323; Knight v. State, 64 Miss. 802.

The indictment charged defendant with having seduced, under promise marriage, one Mary Oliphant, an unmarried female of previous chaste charact On the trial the first witness called was complainant, who testified that name was in fact Mary Olivert. Held, that there was no error in allowing

indictment to be amended to conform to the proof. People v. Johnson, 104 N. Y. 213. See, also, State v. Buchanan, 35 La. Ann. 89; People v. Hogan, 37 State Rep. 117.

An amendment of the corporate title of a bank specified in the indictment is authorized by this section. People v. Dunn, 53 Hun, 382.

294. Trial to proceed. After such amendment, the trial, whenever the same shall be proceeded with, shall proceed in the same manner and with the same consequences, as if no such vari ance had occurred.

Cited, People v. Johnson, 104 N. Y. 216; People v. Jackson, 111 id. 362; E N. T. Cr. Rep. 217; People v. Richards, 44 Hun, 286; 5 N. Y. Cr. Rep. 367; People v. Herman, 45 Hun, 176.

§ 295. Effect of verdict, etc. A verdict and judgment, which shall be given after the making of any such amendment, shall be of the same force and effect, as if the indictment had originally been found in its amended form.

Cited, People v. Johnson, 104 N. Y. 216; People v. Jackson, 111 id. 369.

CHAPTER IV.

ARRAIGNMENT OF THE DEFENDANT.

SECTION 296. Defendant must be arraigned in the court in which indictment is found, if triable therein, or if not, in that to which it is

sent or removed.

297. If indictment be for felony, defendant must be present; if for misdemeanor, he may appear by counsel.

298. When personal appearance is necessary, if defendant be in cus
tody, he must be brought before the court.

299. If discharged on bail or deposit, bench warrant to issue
800. Bench warrant, by whom and how issued.

301. Form of bench warrant.

302. Direction in bench warrant, if indictment be for misdemeanor. 303. If offense be bailable, order for bail to be indorsed on bench

warrant.

304. Bench warrant, how served.

305. Proceedings on bench warrant, when defendant is brought before magistrate of another county.

306. Ordering defendant into custody, or increasing bail, when indictment is for felony.

807. Defendant, if present, to be committed; if not, bench warrant

to issue.

808. Defendant appearing for arraignment without counsel, to be informed of his right to counsel.