nounce judgment, upon a conviction, according to the right of the case.

(a) When intelligible. When there is no difficulty in understanding the particular offense charged under the averments in an indictment, the pleading is sufficient. (People v. Bowe, 3 N. Y. Cr. R., 160.)

The indictment must charge the offense with such precision as will enable the accused to judge whether the facts stated constitute an indictable offense. (Bigge v. People, 8 Barb., 547.)

The indictment is sufficiently definite if it contains sufficient to inform the defendant of the nature of the accusation against him, to enable him to prepare his defense, and to use the indictment, as a bar to a second prosecution for the same offense. (People v. Martin, 2 N. Y. Cr. R., 51.)

The facts constituting the offense must be stated with as much certainty as the nature of the cause will admit. Dord v. People, 9 Barb., 671.)

(b) Time and place.--An indictment which alleges the crime to have been committed at a place within the jurisdiction of the court, is sufficient, and is not defective in omitting to point out the precise locality where the offense took place. (People v. Buddensieck, 4 N. Y., Cr. R., 230. N. Y. State Rep. 436.)

The allegations "at and prior to" a certain date is allegation of time, when the act was continuous. (Ib.)

The time and place must be stated with certainty in the indictment, but it is not necessary to prove them as stated, unless they become material. (People v. Stocking, 50 Barb., 573; 32 How., 48.)

(c) Misnomer of crime. -The name of crime in mere matter of form, which may or may not be stated, and if stated incorrectly does not vitiate nor control the character of the crime as against the allegations constituting it. (People v. Sullivan, 4 N. Y. Cr. R., 197.)

(d) Omission of christian name. -Though the indictment fail to designate the person charged by his full christian name, it is not void. He may be indicted by the initials thereof and convicted. Nubell v. Byrnes, 2 N. Y. Cr. R., 398.

(e) Common Law form sufficient.-An indictment in the common law form is good, notwithstanding the statute and permits a conviction of the offense charged in any degree corresponding to the evidence. (People v. McDonnell, 1 N. Y. Cr. 366, 92 N. Y., 657.)

An indictment which states all the facts necessary to constitute a crime under the Penal Code, is not bad because it adops the phraseology formerly in vogue. (People v. Conroy, 2 N. Y., Cr. R., 565. 97 N. Ý. 62.)

An indictment which contains the old common law form for murder, is good. (Ib.) and 102 Ν. Υ., 204.

(f) Sufficiency of indictment. --- What sufficient to justify conviction on one of several counts when nolle prosequi has been entered on the others. The remaining counts must charge the offense as fully as though they had stood alone. (People v. Werbin, 27 Hun, 311.

(g) When fatally defective. An indictment charging the accused with breaking and entering the dwelling-house of S., when S. was simply a guest occupying a room at an hotel, is fatally defective, the hotel being the dwelling of the landlord and not of his guests. (Rogers v. People, 86 N. Y. 360.)

If there be incongruous or inconsistent allegations in a court of the indictment, the crime cannot be said to be stated at all. (People v. Wise, 3 N. Y. Cr. R., 303.) (h) Acts forbidden on Sunday. -Under the statute forbidding certain acts on Sunday, an indictment alleging that defendant on a specified day of the month, which day was on Sunday, did, etc., is sufficient after conviction, though such day was not Sunday. (People v. Ball, 42 Barb., 324.)

(i) As to person known by different names--In an indictment against a person known by two or more names, and the pleader deems it necessary, for greater certainty, to aver both names, it is immaterial which is first stated, and which is the real names. (Kennedy v. People, 39 N. Y., 245.

(j) Abduction.--An indictment for abduction is sufficient although it alleges the purpose of prostitution and sexual intercourse, instead of stating it in the alternative as in the statute. (People v. Powell, 4 N. Y. Cr. R, 586.)

(k) Abortion. -Indictment, to procure an abortion; what omissions in are fatally defective. (Crichton v. People, 6 Park., 363.)

An indictment charging the administering of drugs with intent to product a miscarriage; and also averring that the death of the child was thereby produced, but omitting the allegation of intent to destroy, is defective as an indictment for manslaughter, but sufficient to convict for a misdemeanor. (Lohman v. People, 1 Ν. Y., 379.)

An indictment averring an intent to procure a miscarriage, etc. is sufficient. (People v. Stockham, 1 m, 1 Park., 424.)

(e) Arson. To sustain an indictment for arson in the third degree for burning a building with intent to defraud the insurer hereof, the facts which bring the accused within the statute must be alleged in the indictment with such certainty as to identify the offense and distinguish it from other transactions. Camcross, et al. v. People, 1 N. Y. Cr. R. 518.)

But when the insurer is named, the residence, mode or incorporation, or manner of coming into existence, may be shown, though not specifically averred in the indictment. (Ib.)

The act of incorporation, with proof of user under it, is, in such a case, sufficient to establish the existence of the corporation. (Ib.)

What is sufficient definiteness as to to the description of inhabited building. (Penal Code §494.)

A tenant's tenure of interest in a dwelling-house is immaterial. People v. Van Blarcum, 2 Johns., 105.)

The building must be described as the house or building of the person in possession, to allege possession in owner, while in possession of a tenant, is fatal. People v. Gates, 15 Wend., 159.

An indictment against a tenant may properly describe the buildings as these of the owner. (People v. Smith, 3 How., 226.)

As to degree of "burning" necessary to consummate this offence, any wilful setting fire so that any part is ignited, although it may be afterwards extinguisher, is sufficient. (Rose Butler's case, 4 N. Y. City Hall Recorder, 77.)

In an indictment, a variance between the indictment and proof as to ownership is fatal. (McGarvey v. People, 45 N. Y., 153; People v. Gates, 15 Wend., 150.)

What averment sufficient as to the ownership of goods burned. (Dedien v. People, 4 Park. 593; 17 How., 224.)

An indictment for burning one's own house with intent to defraud the insurance company, must allege that it was insured. (People v. Henderson, 1 Park., 560.)

Need not allege that the insuring company was a corporation, or had a right to make insurance (6 Park., 114.)

Under an indictment for arson in first degree, conviction may be had in third degree. (Freund v. People, 5 Park., 198.)

An indictment for an attempt to commit arson, need not set out the manner of the attempt. (Mackessey v. People, 6 Park., 114.)

The words of the statute "not being the subject of arson in the first degree" used in defining arson of the second degree, meaning of. (People v. Durkin, 5 Park., 243.)

In an indictment for arson in the third degree, it is not necessary to negative the exception in the statute, and to aver that the store or warehouse burned, was not within the cartilage of an inhabited dwelling-house. People v. Pearce, 11 Hun., 633.)

(m) Assault on officer. (Assault 2d degree.)-An indictment which attempts to set forth an assault in the second degree, but does in fact only show an assault in third degree, is not demurrable. (People v. Cooper, 3 N. Y., Cr. R., 117.) An allegation in an indictment for assault that the person assaulted was in the execution of a "lawful process or mandate" is insufficient. (Ib.)

An indictment for, which does not allege an intent, as prescribed by § 218 Sab. 5 Penal Code, does not show an assault in the second degree. (Ib.)

Intent to commit a rape must be alleged and proven, or the assault is not made out, (People v. Clark, 3 N. Y. Cr. R., 280)

(n) Assault, first degree. As to what are sufficient averments in an indictment for assault in the first degree, see People v. Wheedon, 2 N. Y. Cr. R., 318.) It is not necessary in an indictment for assault first degree that the very words of the statute should be used, but only such averments as constitute the offense as defined. (Ib.)

When the crime is designated in the indictment as assault in the second degree, while the facts alleged constitute assault in the first degree, it will be held good as if the indictment was for assault in the first degree. -People v. Sullivan, 4 N. Y., Cr. R., 193.

How charged as committed on an unknown person. (White v. People, 32 N. Y., 465.

Must aver the intent in an indictment for assault with intent to kill. (People v. Pellet, 3 Johns., 511.)

Must allege the means with which it was made, being one of those mentioned in the statute, as that it was with a "deadly weapon" or "other such force as would be likely to produce death." (People v. Davis, 18 How., 134; 4 Park., 51; O'Leary v. People, Id., 187; 17 How., 316.)

(0) Bawdy house. - What are sufficient facts to support an indictment for. Harwon v. People, 26 N. Y., 190. Berry v. People, 1 N. Y. Cr. R., 43. 77 N. Y., 588.)

(p) Bigamy.-An indictment for bigamy need not negative the exceptions of the statute; it is upon the defendant to bring himself within the exceptions. (Flemings v. People, 27 N. Y., 329.)

(q) Burglary. An indictment for burglary must allege the breaking in of the statuary ways or it is defective. (People v. Gaasbeck, 9 Abb. [N. S.], 328; Fellinger v. People, 15 Abb., 128; 24 How., 341.

Where a building is rented, an indictment may charge it as the dwelling-house of the tenant. (People v. Bush, 3 Park., 552.)

In an indictment for burglary in the first degree, the ownership of the dwelling house may be laid in a firm if the facts warrant it. (Quinn v. People, 71 N. Y., 561.)

(r) Circulating foreign bank notes. - It is necessary to allege the defendants committed the offense as officers of a bank, or that they received the bills at a greater rate of discount than the law allowed on State banks. (People v. Williams, 4 Park., 249.)

(8) Conspiracy. An indictment charging, first, a conspiracy against the firm; second, a conspiracy against the employees of said firm; third, coercion of said firm; fourth, coercion of the employees of said firm, is good. (People v. Lenhardt, 4 N. Y. Cr. R., 317.

As to the form of an indictment for conspiracy, see People v. Kotska, 4 N. Y. Cr. R., 429 People v. Lenhardt, 4 N. Y. C. R., 317.

An indictment must either show that the object aimed at or the means used are criminal. (Lambert v. People, 9 Cow., 578; People v. Eckford, 7 id., 535; People v. Mather, 4 Wend., 229; Elkin v. People, 28 N. Y., 177.)

Where the conspiracy is to induce a witness to suppress her evidence, the indictment must aver that the conspirators did persuade and induce her to withdraw herself from the county, etc. (People v. Chase, 16 Barb., 495.)

Indictment may charge a prisoner with conspiring with others unknown. (People v. Mather, 4 Wend., 229.

(t) Disorderly house. -Form of indictment for, see Berry v. People, 1 N. Y., Cr. R., 43.

In an indictment for, the conclusion “contrary to the statute," &c, can be treated as surplusage, although it charges a common law offense. (Berry v. People, 1 N. Y., Cr. R., 43, 77 N. Y., 588.)

(u) False pretenses. - When an indictment charges that defendant by color and aid of said false and fraudulent pretenses and representations," obtained a certificate from a bank it was held to be unnecessary to allege in terms that the bank was deceived thereby, although it must be proved. (People v. Ward, 3 N. Y. Cr. R., 483.)

In an indictment for obtaining money by false pretenses when the instrument is alleged therein to have been a deed, it is a sufficient averment that it was executed under seal. (Webster v. People, 1 N. Y. Cr. R., 191, 92 N. Y. 422.)

To render a person guilty of larceny by false representations as to the ability to pay of a third person, such representations need not be in writing. (People v. Duman, 5 N. Y. Cr. R., 55.)

An averment in an indictment that the pretenses therein set forth, as made use of by the defendant, were not only false but were known to him to be false at the time they were made, and were false and fraudulent, is sufficient. (People v. Reavy, 4 N. Y. Cr. R., 1.)

(v) Excise laws. -When the indictment charged a violation of the excise law by selling &c., on May 18th and the proof was of a selling on April 20th the variance was held to be fatal. (People v. Savin, 4 N. Y. Cr. R., 547.)

The prosecution need not prove that defendant had no license, defendant must prove he has one. (People v. McIntosh, 5 N. Y. Cr. R., 38.)

(w) Forgery. What are sufficient averments in an indictment for forgery. (Paige v. People, 6 Park, 684; Vincent v. People, 5 id. 88.)

The forgery of a certificate, which if genuine, was fatally defective, is not an indictable offense. (8 Barb. 560. Fadner v. People 2 N. Y., Cr. R., 553.) An instrument invalid on its law cannot be made the subject of forgery. (Id.) On an indictment drawn in the name of a copartnership firm or a bankinghouse it is not necessary to set out the names of all the copartners. (Harris v. People, 9 Barb., 664; People v. Curling, 1 Johns., 320.)

Sufficient to describe the party intended to be defrauded, with reasonable certainty. (Noakes v. People, 25 N. Y., 380; People v. Graham, 6 Park., 135.)

An indictment charging the forging of a mortgage must state that the party whose name is forged owns the land described in the mortgage. (People v. Wright, 9 Wend., 193.)

Where the forged instrument is lost or destroyed, or was traced to the possession of the accused, an exact description is not required in the indictment. The reason of the omission must be stated in the indictment, and then such an account of it given as shall fairly apprize the prisoner of the offense charged. Dates, sums and times of payment may be omitted. (People v. Kingsley, 2 Cow., 522; People v. Badgley, 16 Wend., 63, see post, § 290.

A count charging a prisoner with forging two distinct instruments is bad, if different degrees of punishment is required. (People v. Wright, 9 Wend., 193.)

(r) Larceny.-All the averments necessary as to the property taken, in an indictment for larceny, are the sum of money taken, and an allegation of the same. (People v. Reary, 4 N. Y., Cr. R., 1.)

All that the indictment need contain as to the grand jury, is the statement that the grand jury of the county, where the indictment was found, or, if in a city court, of the city in which the court was held, accuse the defendent of the crime alleged in it. (Id.)

An averment in the indictment alleging the pretenses therein set forth, as made use of by the defendant, were not only false, but were known to him to be false at the time they were made, and were false and fraudulent, is sufficient. (Id.) In an indictment for money stolen, the value must always be alleged. (People v. Bork, 16 Hun. 476, 83 N. Y., 609.)

One holding an office de facto may be indicted Penal Code, whether he is an office de jure or not. Cr. R., 57.)

either under § 470 or § 528 (People v. Church, 3 N. Y.

The use of the word "feloniously" is a sufficient averment of the intent necessary to constitute the crime of larceny, and that the value of the property was of more than twenty-five dollars is sufficiently pleaded by alleging its full value. (People v. Willett, 4 N. Y., Cr. R., 200, 102 N. Y., 251; 1 N. Y., State Rep. 384.)

The word "steals" in the indictment which charges a taking to be felonious, or with a criminal intent sufficiently includes the particular intent necessary to constitute the larceny. (Ib.)

An attorney who obtains money by false and fraudulent representations, may be indicted for larceny under § 528 Penal Code. (People v. Reavy, 4 N. Y., Cr. R., 1.)

A city chamberlain who appropriates money to his own use, can be indicted for larceny under § 528, Penal Code. (People v. Church, 3. N. Y., Cr. R., 57.) It is necessary to allege an intent in an indictment for larceny. (Ib.) (y) Lotteries. --The use of the word "lottery" in an indictment is sufficient as characterizing the sale, for the word lottery indicates a scheme for the distribution of prizes and for the obtaining of money and goods by chance. (People v. Noelke and Merks, 1 N. Y. Cr. R. 495, 94 Ν. Υ. 137.)

An indictment for assisting and contriving a certain lottery is valid against one who is engaged in a raffle or gift enterprise or kindred subject, by whatever name it might be known, whether for children or adults, or designed for any particular time of the year, and however innocent it might be assumed to be in its character, by its contriver. (People v. Runge, 3 N. Y. Cr. R. 85.)

Since all lotteries are now declared unlawful, it is not necessary to declare that the lottery is one not authorized by law. (People v. Sturdevant, 23 Wend., 418.) Where an indictment charged the selling of a piece of paper commonly known as and called a lottery policy, held sufficient. People v. Noelke, 1 Cr. R. 495.) An indictment for selling lottery policies, the "particulars whereof are unknown," and to "divers persons unknown," is sufficient. (Pickett v. People, 8 Hun. 83; 67 N. Y., 609.)

(2) Misdemeanors. - Several misdemeanors may be joined in the same indictment. (People v. Kostello, 1 Den. 83, Kane v. People, 8 Wend., 203, People v. Lenhardt, 4 N. Y., Cr. R. 317.)

A misdemeanor and a felony may be joined in the same indictment. (Ib.) (1) Mutilating public records. -A count in an indictment for mutilating a document deposited with a public officer, by authority of law, is bad, where it appears on the face of the indictment that the document so filed with the supervisor under the election laws was a certified copy of the return of the inspectors, as the statute requires that the original should be so filed. (People v. Wise, 3 N. Y. Cr. R. 303.)

Section 649 does not enlarge the scope of section 94 Penal Code, and should be so construed with § 94 as not to make a double crime of one act, consequently where an indictment contains counts under both sections, both are bad, when they fail to set out the document in words and figures or profess so to do. (Ib.) Also, the latter count is demurrable when it fails to allege (1) that defendant was a supervisor, or (2) that he was a messenger, or, (3) that he took the certificate from the messenger, or, (4) that the use of the certificate for a legal purpose was prevented. (Ib.)

When the charging part of the indictment alleged a tampering with a certificate of a statement relating to the result of an election, and afterwards a mere copy of a statement is set forth, the court is bad for repugnancy. (Ib.)

(2) Murder. An indictment for murder is not bad because it uses the old common law form phraseology. (People v. Conroy, 97 N. Y. 63.)

It has never been required that the particular intent with which a homicide was committed, should be set forth in the indictment; but it has uniformly been deemed sufficient to allege it to have been done feloniously, with malice aforethought and contrary to the form of the statute. (Ib.)

It seems that it is the better form of pleading to charge the crime to have been committed with one of the several intents described in § 183, Penal Code. (Ib.) An indictment in the common law form is sufficient notwithstanding the statute, and permits a conviction for the offense charged in any degree corresponding to the evidence. (People v. McDonnell, 92 N. Y. 657.)

An indictment may properly charge that the injury and death were produced by a weapon unknown. (Colt v. People, 1 Park. 611.)

(3) Manslaughter.-Form of indictment for manslaughter on account of culpable negligence. (People v. Buddensieck, 4 N. Y. Cr. R. 234.) N. Y. State Rep., vol. 1, p. 436.

The employee of a corporation can be indicted for manslaughter by culpable negligence, although his negligence arose from obedience to the order of his official superior. (People v. Melins, 1 N. Y. Cr. R. 39.)

(4) Negligence.--An indictment against a railroad company for neglect to maintain a fence, etc., it is necessary to aver its duty to erect and maintain such fence. (People v. N. Y. C. R. R., 5 Park. 195.)

(5) Nuisance-An indictment for nuisance in maintaining a dam on a private stream, must show what. (People v. Townsend, 3 Hill, 479.)

(6) Gunpowder.--An indictinent for negligently keeping gunpowder stored near a dwelling-house must show was. (People v. Sands, 1 Johns., 78.) Against a plank-road company. (People v. Branchport and Penn Yan Plankroad Co., 5 Park. 604.)

(7) Overdrawing account by bank officer. - When an indictment in separate counts charges the defendant, an officer of a bank, with the offence of overdrawing his account in different amounts and upon different dates, it is objectionable as charging more than one crime. (People v. Upton, 4 N. Y. Cr. R. 455.)

Where the indictment against a bank officer for an over-draft of his account, etc., described the property obtained thereby as "the money, notes, drafts and funds of the bank," the indictment is bad for uncertainty. (Ib.)