diction of the court; except where, as provided by sections 133 to 138, 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 pronounce judgment, upon a conviction, according to the right of the case.

See cases cited under last section.

Sub. 7. Use of common abbreviation will not vitiate. Patterson v. People, 12 Hun, 137. What a sufficient statement of facts. Phelps v. People, 6 Hun, 401; 72 N. Y. 334. Abortion. Eckhardt v. People, 22 Hun, 525; s. c. 83 N. Y. 462. Larceny. McCarney v. People, 83 N. Y. 408, Burglary. Quinn v. People, 71 N. Y. 561. Embezzlement. Bork v. People. 16 Hun, 476; s. c. 83 N. Y. 609. Arson. People v. Pierce, 11 Hun, 633. Corporation: People v. Graham, 1 Sheld. 151. False pretenses, 66 Bar. 131; Barber v. People, 17 Hun, 366; Webster v. People, 92 N. Y. 422. Cheating. People v. Fisk, 1 Sheld. 537. Lotteries. Pickett v. People, 8 Hun, 83; s. c. 69 N. Y. 609; People v. Noelke, 29 Hun, 461. Liquor selling. Schwab v. People, 4 Hun, 520; Jefferson v. People, 28 Hun, 52. General averments. People v. Weston, 1 Sheld. 555. Bank officers. People v. Williams, ib. 568. Election oflicers. Hall v. People, 90 N. Y., 498; Boland . People, ib. 678. See Pontius v. People, 82 N. Y. 339; S. & T. P. Co. v. People, 66 Bar. 25; People v. Hallenbeck, 52 How. Pr. 502; People v. O. & T. 83 N. Y. 436. Common law rules prevail where the Code is silent. People v. Wise, 2 How. Pr. (N. S.) 92; 3 N. Y. Cr. 305. People v. Reavey, 38 Hun, 421; 4 N. Y. .Cr. 14; People v. Dewey, 35 Hun, 311; People v. Bowe, 34 id. 533; Parkhurst v. Higgins, 38 id 113; People v. Conroy, 97 N. Y. 62; People v. Jackson, 111 N. Y. 369; People v. Farrell, 28 N. Y. State Rep. 44; People v. Crotty, 30 id. 45; People v. Dumar, 106 N. Y. 509; People. Bliven, 112 id. 79; People v. Sullivan, 4 N. Y. Cr. 193; People v. Smith, 6 id. 473; Bork v. People, 91 N. Y. 13; 1 N. Y. Cr. 379; People v. Kelly, 3 id. 272; People v. Gregg, 59 Hun, 112; People v. Buffum, 27 id. 216; People v. Horton, 42 N. Y. State Rep. 587, 588.

§ 285. Indictment not insufficient for defect of form, etc.- 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 Schrumpf v. People, 14 Hun, 10; Pontius v. People, 82 N. Y., 339; Gray v. People, 21 Hun, 140, furnishing defendant grand jury minutes to aid indictment. Eighmy v. People, post; People v. Peck, 2 N. Y. Cr., 314. People v. Gregg, 59 Hun, 112; People v Weldon, 111 N. Y., 575; People v. Haight, 54 Hun, 9; People v. Willett, 102 N. Y., 253; People v. Buddensieck, 103 id., 496; People Dimick, 107 id., 29; 41 Hun, 621; People v. Clements, id., 210; People v. Dann, 53 Hun, 387; People v Ostherout, 34 id., 261; 3 N. Y. Cr., 445; People v. Haight, 51 Hun, 9; People v. McHale, 39 N. Y. St. Rep, 762; People v. Williams, 18 id., 405; People v. Sullivan, 4 N. Y. Cr, 194; People v. Dewey, 35 Hun, 311; People v. Bellows, 2 N. Y. Cr. 12; People v. Lowndes, 42 N. Y. St. Rep., 360, 362; People v. Tower, id., 164, 166.

§ 286. Presumptions of law, etc.—Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment.

People v. Dunn, 53 Hun, 387; Carncross v. People, 1 N. Y. Cr. 518; 17 W. Dig. 383.

§ 287. Pleading a judgment, etc.-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, may be established on the trial.

See Eighmy v. People, 79 N. Y., 546; 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 530 of Code of Civil Pro.

An indictment for libel need

§ 289. Indictment, etc., for libel. not set forth any extrinsic facts for the purpose of showing the application to 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.

People v. Isaacs, 1 N. Y. Cr. 148; People v. Wise, 3 id. 305; 2 How. N. S. 98; Richardson v. State, 9 E. R. 277; People v. Stark, 59 Hun, 59.

§ 290. Pleading in indictment for forgery, etc.-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.

People v. Wise, 3 N. Y. Cr. 305; 2 How. (N. S.) 98; People v. Kingsley, 2 Cow. 522; People v. Badgley, 16 Wend. 53.

§ 291. Pleading in indictment for perjury, etc. In an indictment for perjury or subornation of perjury, it is sufficient to set forth the substance of the controversy 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.

Eighmy r. People, 79 N. Y. 546; Stratton v. People, 81 N. Y. 629; People . Grimshaw, 2 N. Y. Cr. 390; People Wise, 3 N. Y. Cr. 305; 2 How. (N. S.) 98 People v. Clements, 42 Hun, 358; 107 N. Y. 205; Tuttle v. People 36 id. 431

Harris v. People, 4 Hun, 1; Ortner . People, id. 323; People v. Williams, 18 N. Y St. Rep. 403; Burns v. People, 55 Barb. 531; 5 Lans. 189; Geston v. People, 4 id 487; 61 Barb. 35; People v. Hoag, 2 Park. 9; People v. Sweetman, 3 id. 358; People v. McKinney, id. 510; O'Reilly v. People, 9 Abb. N. C. 77; People ex rel. Danziger v. Prot. E. House, etc. 128 N. Y. 185.

§ 292. Upon indictment against several, etc.-Upon an indictment against several defendants any one or more may be convicted or acquitted.

White v. People, 32 N. Y. 469; March . People, 7 Barb. 391; Klein v. People, 31 N Y. 229; Chatterton v. People, 15 Abb. 147; Mack v. State, 32 Miss. 406; Shorese v. Com. 5 Penn. St. 83; United States v. Harding, 1 Wall Jr 127; People v. Cotto, 42 N. Y. St. Rep. 713, 716.

ment, 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 can not 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.

When denied. People v. Poucher, 30 Hun, 576. Constitutional. People v. Johnson, 104 N. Y. 216; 5 N. Y. Cr. 217; 4 id 591; People v. Herman, 45 Hun, 176. 27 W. Dig. 118; People v. Richards, 44 Hun,278, 5 N. Y. Cr. 367. When allowed; People Dunn, 53 Hun, 382; People v. Hagan, 37 N. Y. St. Rep. 651; People v. Johnson, 101 N. Y. 213, 5 N. Y. Cr. 217; 4 id. 591; People v. Herman, 45 Hun, 175; 27 W. Dig. 118; People v Jackson, 111 N. Y. 369; People v. Clegg. 32 N. Y. St. Rep. 701; Knight State, 61 Miss. 802; State v. Buchanan, 35 La. Ann, 89; State v. Dominique, 39 id. 323. See People v. Petrea, 92 N. Y. 145; People v. Campbell, 4 Park. 387; Matter of Bain, 121 U. S. 1; Com. v. Drew, 3 Cush. 279; Com. v. Mahar, 16 Pick. 120; Com. v. Child, 13 id. 200; State v. Moore, 21 S. C. 150; 58 Am. Rep. 241.

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.

People v. Jackson, 111 N. Y. 369; People v. Johnson, 104 id. 216; 5 N. Y. Cr. 217; 4 id. 591; People v. Richards, 44 Hun, 288; 5 N. Y. Cr. 367; People v. Herman, 45 Hun, 176; 27 W. Dig. 118.

§ 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.

People v. Jackson, 111 N. Y. 369; People v. Johnson, 104 id. 216; 5 N. Y. Cr. 217; 4 id. 591.

CHAPTER IV.

ARRAIGNMENT OF THE DEFENDANT.

SEC. 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 custody, 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.

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

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

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, etc.—- 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.

When court of sessions can not arraign. People v. McCraney, 21 How. Pr. 149. See People v. Pierson, 79 N. Y. 424. Failure to arraign. People v. Ost rhout, 34 Hun, 260. Necessary. People v. Bradner, 107 N. Y. 1; Sanders v. State, 97 Ind. 147. Sufficient. People v. Frost, 5 Park. 52. Corporation. People v. Gas-light Co. 6 N. Y. Cr. 189. See King v. People, 5 Hun, 297.

§ 297. If indictment be for felony, etc.- 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.

Presence in adjoining room. People v. Bragle, 88 N. Y. 585; Same v. Same, 26 Hun. 378. When unnecessary. People v. Vail, 57 How. Pr. 581. See People v. Gas-light Co. 6 N. Y. Cr. 189.

§ 298. When personal appearance is necessary, etc.-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.

People v. Gas-light Co. 6 N. Y. Cr. 190.

§ 299. If discharged on bail, etc.- 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 personal attendance is necessary, the court, in addition to the forfeiture of any undertaking of bail, or of any money deposited, may direct the clerk to issue a bench warrant for his arrest.

See § 599, post. Sherwin v. People, 100 N. Y. 351; People ex rel. Sherwin v. Mead, 28 Hun, 227; 64 How. 41; People v. Gas-Light Co. 6 N. Y. Cr. 190.

§ 300. Bench warrant, by whom, etc., issued.-The clerk, on the application of the district attorney, may accordingly at any time after the order, whether the court be sitting or not, issue a bench warrant to one or more counties. A bench warrant for the arrest of any defendant indicted, may also be issued by the district attorney at any time after the indictment is found.

See § 306, 599, post.

§ 301. Form of bench warrant.-The bench warrant issued upon the indictment must, if the crime be a felony, be substantially in the following form:

"County of Albany, [or as the case may be].

"In the name of the People of the state of New York: "To any peace officer in this state. found on the

day of

An indictment having been

18 in the court of sessions of the county of Albany [or as the case may be] charging C. D. with the crime of [designating it generally].

"You are therefore commanded, forthwith to arrest the above named C. D., and bring him before that court, [or if the indictment have been sent or removed to another court, ] before the court of oyer and terminer of the county, [or as the case may be,] to answer the indictment; or if the court have adjourned for the term, that you deliver him into the custody of the sheriff of the county of Albany, [or as the case may be, or in the city and county of New York "to the keeper of the city prison of the city of New York."]