statute and relate to the same transaction. People v. Emerson, 25 St. Rep., 467; 53 Hun, 437.

It was not the intention of the legislature to deprive the people of the right to state the acts constituting the supposed crime in different counts, in language appropriate to meet such circumstances and features of the event, as should be developed in the full and careful investigation which takes place in the progress of a trial. People v. Menken, 36 Hun, 95.

Nor was it the legislative intention to limit the indictment to a single statement, in one count, of the offense charged against the accused. People r. Menken, 36 Hun, 95.

There may be a joinder of various counts in the same indictment stating the same offense distinctly and separately in various ways so as to meet the evidence. People v. Cole, 2 N. Y. Cr., 110; People v. Infield, 1 id., 146.

A count for burglary, with an attempt to commit larceny, may be united with a count for larceny. People v. Emerson, 25 St. Rep., 467; 53 Hun, 437. So burglary and larceny, rape and assault with intent to commit rape, larceny and receiving stolen goods, assault with intent to kill and a simple assault, if arising out of same transaction, may be united. Id.

It is no objection to uniting such counts that they constitute different grades of offense and call for the imposition of different penalties. People 7. Rose, 39 St. Rep. 292; 15 N. Y. Supp., 816; People v. Emerson, 25 St. Rep., 467; 53 Hun, 437.

Counts charging burglary, larceny and receiving stolen property are properly joined in one indictment, where the offenses so alleged relate to the same transaction. People v. Rose, 39 St. Rep., 292; 15 N. Y. Supp., 816; Hawker v. People, 75 N. Y., 487.

Where the different offenses, charged in the separate counts, arise out of the same transaction and are so charged, or it may be fairly inferred from the allegations that they relate to but one offense, the counts are properly joined. People v. Rose, ante.

The indictment, in People v. Klock, 16 St. Rep., 565; 48 Hun, 276, was held to charge only one offense, viz. : keeping a place where animals are fought in violation of section 665 of the Penal Code.

Where a conspiracy is formed with one aim and object only, though the means adopted to accomplish it, are many and various in their character, an indictment, setting forth such facts in their proper order in one count, charges but one offense. People v. Everest, 20 St. Rep., 456; 51 Hun, 24 ; 3 N. Y. Supp., 613.

Where the allegations of the different counts vary in respect to the manner of effecting the killing, the part of the body upon which the wounds were inflicted and the extent of such wounds, the indictment is good, if it shows upon its face that those counts relate to but one and the same transaction. People v. Cole, 2 N. Y. Cr., 110.

Where the gist is the same, the prohibited acts may be charged in separate counts with different intents and as against different parties, provided they constitute one and the same transaction. People v. Lenhardt, 4 N. Y. Cr.,

324.

Where the only difference between the two counts of an indictment for larceny is that one charges, “a more particular description of the property is to the grand jury unknown," etc., the indictment is not bad in charging more than one crime. People v. Moore, 37 Hun, 87; 3 N. Y. Cr., 462.

An indictment which charges the exposing for sale, and the selling, of milk prohibited by section 1, chap. 183 of 1885, is not obnoxious to the objection that it contains the allegation, in one count, of two crimes in violation of this section. People v. Burns, 25 St. Rep., 99; 53 Hun, 277; 7 N. Y. Cr., 93; 6 N. Y. Supp., 611, 612.

An indictment, which charges that, on the 3d and 4th days of August, 1884, the defendant brought to a certain cheese factory, named and described therein, milk diluted with water, and that he sold the same, etc., alleges but a single transaction and is not obnoxious to the provisions of this and the next section. People v. Harris, 28 St. Rep. 300; 7 N. Y. Supp., 776; 4 Silv. (Sup. Ct.), 535, 537, note; aff'd, 33 St. Rep., 168; 123 N. Y., 70.

An indictment may properly contain two counts, each alleging a sale of liquor without a license, on the same day, at the same place and to the same person, the first, in quantities less than five gallons, the other, to be drank

on the premises, in case a single act is charged, which constitutes different crimes. People v. Charbineau, 26 St. Rep., 491; 115 N. Y., 436.

Distinct crimes.-Sections 278 and 279 of the Code of Criminal Procedure abrogated the rule existing before the Code, that several misdemeanors might be joined in the same indictment, when the same judgment was appropriate for all the offenses. People v. O'Donnell, 15 St. Rep., 141; 46 Hun, 362; 7 N. Y. Cr., 346; 10 N. Y. Supp., 251, 252; People v. Upton, 38 Hun, 107; 4 N. Y. Cr., 455.

Not more than one separate and distinct crime can be charged in an indictment. People v. Upton, 38 Hun, 107; 4 N. Y. Cr., 455.

The joinder of counts is bad, when the offenses alleged are for different and independent felonies. People v. Rose, 39 St. Rep., 292; 15 N. Y. Supp., 816.

An indictment, which contains five counts, in each of which a separate and distinct offense is set forth as having been committed on different days, in taking money in different sums, violates the prohibition of this section and is demurrable. People v. Upton, 38 Hun, 110.

The prohibition of this section is violated, where the indictment charges a bank officer with the offenses of over-drawing his account in different amounts and upon different dates. People v. Upton, 4 N. Y. Cr., 455.

Under the Code, it is, perhaps, doubtful whether the two offenses of forgery and uttering the forged instrument can be properly united in the same indictment. People v. Tower, 48 St. Rep., 439; 135 N. Y., 459; affg 42 St. Rep., 164.

Where either one of several acts constitutes a crime, and the indictment has but one count, charging one of the acts constituting the crime, it cannot be sustained by proof that the crime was committed by different means. People v. Dumar, 11 St. Rep., 19; 106 N. Y., 502; 8 N. Y. Cr., 270.

Election.-Where the only variance between the counts of an indictment, charging murder in the first degree, is as to the means used to effect death and the manner in which it was accomplished, a refusal to compel the district attorney to elect upon which count he would rely is not error. People v. Wilson, 15 St. Rep., 503; 109 N. Y., 351.

Even before the Code, it was held to be discretionary with the court whether it would compel an election in such a case. People v. Armstrong, 70 N. Y., 42; People v. Hawker, 75 id., 490.

See People v. Clark, 8 N. Y. Cr., 210; 14 N. Y. Supp., 655; People v. Harmon, 18 St. Rep., 820; 6 N. Y. Cr., 172; 2 N. Y. Supp., 422; People v. Rice, 35 St. Rep., 186; 13 N. Y. Supp., 162; People v. Crotty, 30 St. Rep., 45; 9 N. Y. Supp., 938; People v. Crowley, 1 St. Rep., 388; People v. Hatter, 22 N. Y. Supp., 690.

§ 279. Crime may be charged 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.

Amended by chap. 306 of 1883.

This amendment inserted, after the word "committed," the words "in a different manner.

See notes under the preceding section.

The case of People v. Dimick, 3 St. Rep., 398; 41 Hun, 616; 5 N. Y. Cr., 200, was reversed in 11 St. Rep., 739; 107 N. Y., 13.

This and the preceding section are not limited in their application to indictments for felonies. People v. O'Donnell, 15 St. Rep., 141; 46 Hun, 362; 10 N. Y. Supp., 251, 252.

Before Code.-Before the enactment of the Code of Criminal Procedure, an indictment was not bad, because of the joinder of separate and distinct misdemeanors, though followed by different penalties. Id.; People v. Dunn, 90 N. Y., 107.

After Code.-Even since the adoption of the Code, when the act complained of may constitute different offenses, such offenses may be charged in separate counts of the indictment. People O'Donnell, ante; People v. Infield, 1 N. Y. Cr., 146; People v. Kelly, 3 N. Y. Cr., 272.

Separate Counts.-Separate counts are proper under certain circumstances. People v. McCarthy, 18 St. Rep., 267; 110 N. Y., 314.

The alleged crime may be charged in separate counts to have been committed by different means. People v. Lenhardt, 4 N. Y. Cr., 427; People r. Menken, 3 N. Y. Cr., 233.

The crime may be charged in separate counts, where the acts and circumstances referred to relate to the same transaction. People v. Crotty, 30 St. Rep., 45: 9 N. Y. Supp., 938; Taylor v. People, 12 Hun, 217.

The indictment may state the acts constituting the crime in different counts, appropriate to meet the evidence which may be presented on the trial. People v. Menken, 3 N. Y. Cr., 233; People v. Crotty, 30 St. Rep., 45; 9 N. Y. Supp., 938; People v. O'Donnell, 15 St. Rep., 141; 46 Hun, 360; 10 N. Y. Supp., 251, 252.

An indictment, which contains varying allegations in different counts as to the manner and means of the commission of the crime, but shows, upon its face, that the counts relate to but one and the same transaction, is good. People v. O'Donnell ante; People v. Cole, 2 N. Y. Cr., 108.

Where the people are required to establish the accusations made in the indictment, by circumstantial evidence, and the means by which the crime was committed are not clearly and definitely ascertainable or ascertained at the time the indictment is prepared, the case is a proper one for the application of the rule laid down in this section. People v. Menken, 36 Hun, 97. When the act complained of may constitute different offenses, such offenses may be charged in separate counts of the indictment. People v. Kelly, 3 N. Y. Cr., 274.

Where but one crime is committed, whether the evidence tends to show the crime to have been directly committed by the defendant, or that he aided or abetted in doing the deed, the case is brought within the provisions of this section, and the crime may be charged in separate counts, as committed by the defendant as principal or accessory. People v. Clark, 8 N. Y. Cr., 210; 14 N. Y. Supp., 655.

The indictment must name the crime and state the act constituting it; and, if either one of several acts constitute the crime, the several acts must be separately stated in different counts. People v. Dumar, 11 St. Rep., 19; 106 N. Y., 510; 8 N. Y. Cr., 270.

Separate counts, charging the three offenses of section 351 of the Penal Code, are proper, if arising out of the same acts. People v. Kelly, 3 N. Y. Cr.. 274.

Where the acts complained of may constitute different crimes, such crimes may be charged in separate counts. People v. Crotty, 30 St. Rep., 45; 9 N. Y. Supp., 938.

If the acts complained of, in a criminal prosecution, constitute a felony and also a misdemeanor, both may, it seems, be joined in the same indictment, provided they are charged in separate counts. People v. Lenhardt, 4 N. Y. Cr., 327.

Conspiracy and coercion, two distinct misdemeanors, may be set up in different counts of the same indictment, where the acts complained of in each case are the same, and constitute the different crimes. Id.; People v. Crotty, 30 St. Rep., 46; 9 N. Y. Supp., 938.

Where the same acts constitute larceny and receiving stolen goods, they may properly be stated in separate counts in the same indictment. People v. Infield, 1 N. Y. Cr., 146.

An indictment, containing two counts, one for robbery in the first degree, and the other for larceny in the first degree, is valid, where it is reasonably clear, upon the face of the indictment, that the second embraces the same acts as the first count. People v. Rose, 22 St. Rep., 390; 52 Hun, 34; 4 N. Y. Supp., 788.

It is proper to join in an indictment two counts, one charging robbery and the other larceny, where each charge is found upon the taking of the same article of personal property from the same person at the same time and place. People v. Callahan, 29 Hun, 580; 17 W. Dig., 192; People v. Crotty, 30 St. Rep., 46; 9 N. Y. Supp., 938. In the above cited case, one unt charged the property to have been taken with, and the other without, violence to the person of the owner.

An indictment for grand larceny in the first degree, which charges, in

separate counts, the crime to have been committed in a different manner or by different means, is expressly permitted by this section. People v. Rice, 35 St. Rep., 186; aff'd, 40 id., 978.

Under the first provision of this section, it is competent to charge in separate counts that the same crime was committed in a different manner or by different means. People v. Harmon, 18 St. Rep., 820; 6 N. Y. Cr., 172: 2 N. Y. Supp., 422. The latter provision of the section refers to crimes having different degrees, such as murder and manslaughter, where the criminal act may constitute different crimes. Id.

Improperly joined.—An indictment, which charges an illegal sale of spirituous liquors on four different occasions and to different people, charges more than one crime, and is obnoxious to the provisions of this section. People v. O'Donnell, 15 St. Rep., 141; 46 Hun, 360; 10 N. Y. Supp., 251, 252, It is doubtful whether the two offenses of forgery and uttering the forged instrument can be properly united in the same indictment. People v. Tower, 48 St. Rep., 438; 135 N. Y., 459; aff'g 42 St. Rep., 164.

Remedy. The objection of misjoinder of offenses is waived by appear ing and entering a plea of not guilty. People v. Upton, 38 Hun, 110.

An indictment for abduction, charging that the defendant took the female in question for the purpose of prostitution and sexual intercourse, is not demurrable upon the ground that more than one crime is charged. People v. Powell, 4 N. Y. Cr., 585.

Under certain circumstances, separate counts are proper; but, if more than one crime is charged in an indictment, except as permitted by this section, the proper and only remedy is by demurrer. People v. McCarthy, 18 St. Rep., 267; 110 N. Y., 314.

Election.-The decision of a motion to compel the prosecution to elect, on which counts of an indictment defendant shall be tried, may properly be deferred till the evidence is in on both sides. People v. Ward, 3 N. Y. Cr., 483.

Whether the district attorney shall be compelled to elect upon which of two charges, for different grades of the same offense, he will proceed rests in the discretion of the trial court. People v. Reavey, 38 Hun, 423 ; 4 N. Y. Cr., 17.

An application to compel the district attorney to elect under which charge in the indictment he will try the defendant, is addressed to the discretion of the court. People v. Menken, 36 Hun, 98.

Where several counts are improperly united in an indictment, the defendant is not entitled, as a matter of right, to an instruction that the district attorney elect upon which count he will proceed. People v. McCarthy, 18 St. Rep., 267; 110 N. Y., 314. Such a request is an appeal to the discretion of the court, and a denial of the application cannot be successfully assigned as error. Id.

Defective counts.-Where there is one good count in an indictment, and evidence to support it, the cor.viction will be sustained, though the indictment contains other counts which were defective. People v. Menken, 36 Hun, 97; People v. Davis, 56 N. Y., 95; Phelps v. People, 72 id., 365; Pontius v. People. 82 id., 359; Hope v. People, 83 id., 419.

See People v. Wilson, 15 St. Rep., 503; 109 N. Y., 351; People v. Everest, 3 N. Y. Supp., 613; People v. Rice, 35 St. Rep., 185; 13 N. Y. Supp., 161, 162; People v. Harris, 28 St. Rep., 300; 4 Silv. (Sup. Ct.), 535, 537, note; 7 N. Y. Supp., 776; People v. Charbineau, 26 St. Rep., 491; 115 N. Y., 436, 7; People v. Burns, 25 St. Rep., 99; 6 N. Y. Supp., 611; People v. Harris, 33 St. Rep., 168; 123 N. Y., 70, 76; People v. Olsen, 39 St. Rep., 295; 15 N. Y. Supp., 781; People v. Rose, 39 St. Rep., 292; 15 N. Y. Supp., 816 ; People v. Emerson, 25 St. Rep., 467; People v. Lake, 9 id., 638; People v. Peck, 2 N. Y. Cr., 316; 18 W. Dig., 527; People v. Johnson, 5 N. Y. Cr., 219; People v. Hatter, 22 N. Y. Supp., 690.

§ 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.

The case of People v. Krank, 12 St. Rep., 845; 46 Hun, 632, was reversed in 18 St. Rep., 418; 110 N. Y., 488.

Essence. Where the selling or giving away of intoxicating liquors must be on Sunday, in order to be brought within the prohibition of the statute, the time is a material ingredient in the crime. People v. Harmon, 18 St. Rep., 820; 6 N. Y. Cr., 171; 2 N. Y. Supp., 422.

Where the indictment charges a selling of spirituous liquors on Sunday, May 18, 1884, and the proof establishes a selling on Sunday, April 20, 1884, the variance was held to be fatal. People v. Lavin, 4 N. Y. Cr., 547.

It is not necessary to prove the time and place of the transaction, as stated in the indictment, unless they are necessary ingredients in the offense. People v. Emerson, 25 St. Rep., 468; 53 Hun, 440; 7 N. Y. Cr., 105; 6 N. Y. Supp., 276.

Evidence as to the day laid in the indictment. People v. Emerson, 20 St. Rep., 16; 6 N. Y. Cr., 158; 5 N. Y. Supp., 374.

Sufficient.-It is sufficient that it can be understood from its allegations that the crime was committed at some time prior to the finding of the indictment. People v. Jackson, 19 St. Rep., 510; 111 N. Y., 369; 6 N. Y. Cr., 399.

An allegation, charging the crime to have been committed "at and prior to" a certain date, is a sufficient statement of time in an indictment, where the act alleged was continuous. People v. Buddensieck, 4 N. Y. Cr., 251; affirmed, 3 St. Rep., 664; 103 N. Y., 496; 5 N. Y. Cr., 69.

An indictment for manslaughter by culpable negligence, which gives the time of the commission of the offense, the place within the jurisdiction of the court, and the circumstances enumerated in the statute, was held to be sufficient. People v. Buddensieck, 3 St. Rep., 664; 103 N. Y., 487; 5 N. Y. Cr.. 69.

Variance.-A variance of one day between the time of the commission of the crime, as alleged in the indictment and as proved upon the trial, is immaterial. People v. Jackson, 19 St. Rep., 510; 111 N. Y., 369; 6 N. Y. Cr., 399.

See People v. Harris, 28 St. Rep., 300; 7 N. Y. Supp., 776; 4 Silv. (Sup. Ct.), 535; People v. Crowley, 1 St. Rep., 388.

§ 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 sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material:

The case of People v. Richards, 7 St. Rep., 656; 44 Hun, 268; 5 N. Y. Cr., 369; was reversed in 13 St. Rep., 515; 108 N. Y., 137,

Variance.-It is not a material variance that, in an indictment for incest, the middle name of the female is omitted, where there is no question as to her identity. People v. Lake, 16 St. Rep., 197; 110 N. Y., 61.

Where the offense involves the commission of a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured is not material. People v. Johnson, 5 St. Rep., 606; 104 N. Y., 216; 5 N. Y. Cr., 219.

Amendment.-Upon the trial of an indictment for seduction under promise of marriage of one Mary Olyphant, at Wilna, in Jefferson County, the court allowed an amendment of the indictment, to conform to the proof, by substituting "Olivert" for " Olyphant," and "Champion" for " Wilna." People v. Johnson, 4 N. Y. Cr., 591.

An amendment, in the indictment, of the corporate title of the bank, where it is the person injured, is authorized by sections 281 to 293 of this Code. People v. Dunn, 25 St. Rep., 460; 53 Hun, 387; 7 N. Y. Cr., 187; 6 N. Y. Supp., 808.

See People v. Herman, 10 St. Rep., 66.

§ 282. Construction of words used in indictment.-The words used in an indictment must be construed in their usual accep