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

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

$288. Private statute, how pleaded. -- In pleading a private statute, or a right derived therefrom, it is sufficient to refer to the statute, by its title and the day of its passage, and the court must thereupon take judicial notice thereof.

See Code of Civ. Procedure, § 530.

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

Matter not libelous on its face must be rendered so by innuendo; People v. 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 committed.

See People v. Williams, 18 State Rep. 403; Geston v. People, 4 Lans. 487; 61 Barb. 35; People v. Robertson, 3 Wheeler Crim. Cas. 180; People v. Clements, 107 N Y. 205; Tuttle v. People, 36 id. 431; People v. Hoag, 2 Park. 9; Burns v. People, 55 Barb. 531; 5 Lans. 189; Campbell v. People, 8 Wend. 636; O'Reilly v. People, 9 Abb. N. C. 77; Harris v. People, 4 Hun, 1; Ortner v. People, id. 323; People v. Sweetman, 3 Park. 358; People v. Mc Kinney, id. 510; People v. Warner, 5 Wend. 272; People v. Eighmy, 79 N. Y. 556; Stratton v. People, 81 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 several defendants any one or more may be convicted or acquitted. See 1 Bish. Crim. Proc., §§ 1036, 1625; Chatterton v. People, 15 Abb. Pr. 147; Klein v. People, 31 N. Y. 229; Rex v. Hempstead, Russ. & Ryan, 344.

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

United

Where two defendants are charged with murder in the same indictment, the jury may find one guilty of murder and another of manslaughter. States 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 convicted without the other. Stephens v. State, 14 Ohio, 388; State v. McD., & Bennet, 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 judgment, 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's 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 v. 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. Y. Cr. Rep. 217; 4 id. 591; People v. Herman, 45 Hun, 176; 27 Week. Dig. 118: People v. Richards, 5 N. Y. Cr. Rep. 367; 44 Hun, 286.

An indictment for grand larceny, charging the stealing of “coin," cannot be amended upon the trial, to conform to the proofs, by substituting currency for coin, where the effect of the amendment will be to change the grade of the offense proven from petit to grand larceny. People v. Poucher, 30 Hun, 576. Where, upon a trial for larceny, there is a variance between the allegation and proof as to the owner of the goods alleged to have been stolen, the indictment may be amended in that respect. The name of the owner is no material attri. bute of the crime charged. People v. Herman, 27 Week. Dig. 118; 45 Hun, 176; State v. Dominique, 39 La. Ann. 323; Knight v. State, 64 Miss. 802.

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

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 variance had occurred.

Cited, People v. Johnson, 104 N. Y. 216; People v. Jackson, 111 id. 362; E N. Y. 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
300. 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.

SECTION 309. Arraignment, how made.

310. If he gave another name, subsequent proceedings to be had by that name, referring to name in the indictment.

311. Time allowed defendant to answer indictment.

312. How defendant may answer indictment.

$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. When an indictment is filed, the defendant must be arraigned thereon, before the court in which it is found, or before the court to which it is sent or removed.

See 1 Bish. Crim. Proc. (3d ed.), § 728 et seq., 21 How. Pr. 149; 52 Cal. 480; 54 Ind. 159; 31 Mich. 471; 59 Mo. 154; 1 Tex. App. 248, 225.

In a criminal case an arraignment and plea are essential and necessary preliminaries to a legal trial upon an indictment. People v. Bradner, 107 N. Y. 9. Any form of arraignment is sufficient by which the prisoner admits his identity and demands a trial. People v. Frost, 5 Park. 52.

There is in this Code no provision for compelling a corporation which has been indicted to appear before the court and plead to the indictment. People v. Gas-light Co., 6 N. Y. Cr. Rep. 189.

When failure to arraign a prisoner affords no ground for reversal of a conviction. People v. Osterhout, 34 Hun, 260.

A trial without an arraignment is a nullity. Sanders v. State, 97 Ind. 147.

297. If indictment be for felony, defendant must be present; if for misdemeanor, he may appear by counsel. If an indictment be for a felony, the defendant must be personally present when arraigned; but if for a misdemeanor only, his personal appearance is unnecessary, and he may appear upon the arraignment by counsel.

No provision of this Code compels a corporation to plead to an indictment. People v. Equitable Gas-light Co., 6 N. Y. Cr. Rep. 189.

$298. When personal appearance is necessary, if defendant be in custody, he must be brought before the court. When his personal appearance is necessary, if he be in custody, the court may direct the officer in whose custody he is, to bring him before it to be arraigned.

299. If discharged on bail or deposit, bench warrant to issue. If the defendant have been discharged on bail, or have deposited money instead thereof, and do not appear to be arraigned, or if the defendant be for any cause absent when his