(d) Id. If the acts of the prisoners committing the offense are a part of one and the same transaction, and the offense in law admits of different degrees, they may be convicted of different degrees, though jointly indicted for the same offense. (Klein v. People, 31 N. Y., 229.)

(e) Id. — Where two are jointly indicted for committing a larceny, and one pleads guilty to an attempt to commit larceny and is sentenced, the other defendant may be lawfully tried for the larceny and on conviction, be sentenced to suffer the penalty of the law therefor. (Id.)

(ƒ) When entitled to separate trials. Two or more persons jointly indicted for forging bank paper, etc., are not entitled to separate trials as matter of right. (Shaw and Haskin's case, 1 C. H. Rec., 177.)

(g) Id., in capital cases. Semble, as to whether two persons indicted for a capital offense and entitled to a peremptory challenge, can be tried together against their consent. (People v. Howell, 9 Johns., 296.)

(h) Name of one omitted by mistake. Where two persons are jointly indicted for larceny, and the name of one has been omitted by mistake from the body of the indictment, held, that the jury could acquit the party not named and convict the other or pass no verdict in case of the first, except to return the fact to the court. (Van Orden and Stewart's cases, 1 C. H. Rec., 64.)

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.

New. (See 3 R. S., 1022, § 54.)

(a) At common law and in other states.-There are many English statutes of amendments and jeofails which having been passed before the settlement of this country are common law with us; but by their terms they do not extend to criminal causes. (3 Black. Com., 407; 4 id., 375; Atcheson v. Everitt, Cowp., 383, 392; 1 Bish. Crim. Pro., § 707; 1 Stark. Crim. Pl. [2d ed.], 259; Com. v. Morse, 2 Mass., 128; Com. v. Child, 13 Pick., 198.) A material

amendment to an indictment would clearly be unconstitutional. (Starlup v. State, 10 Vroom., 423, 432; Calvin v. State, 25 Texas, 789.)

(b) Changing of name allowed. The mere formal changing of a name allowed. (Haywood v. State, 47 Miss., 1; Rough v. Com., 28 Smith [Pa.], 495; State v. Manning, 14 Texas, 402; 1 Bish. Crim. Pro., § 97 et seq.)

(c) When indictment set aside or amended.- Whether an indictment can be set aside or amended on motion for having been found without evidence, or on that which was insufficient, quære. (People v. Hulbut, 4 Den., 133.)

§ 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.

New.

§ 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.

New.

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 misdemeanç r. 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.

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. (Amended 1882.) 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.

New.

Arraignment defined. (1 Bish. Crim. Proc., § 928; 4 Bl. Comm., 321, 332; Whitehead v. Com., 19 Gratt., 640; Jackson v. Com., Id., 656.)

The arraignment and plea are a necessary part of the proceedings, and that without them there can be no valid trial and judgment. (Early v. State, 1 Texas App., 248; Holden v. State, 1 Texas App., 225; State v. Barnes, 59 Mo., 154; Graeter v. State, 54 Ind., 159; Gregg v. People, 31 Mich., 471; 1 Bish. Crim. Proc., § 733; 28 Cal., 330.)

The failure of this duty is fatal. (52 Cal., 480; 54 Ind., 159; 31 Mich., 471.) (a) No particular form necessary. — Any form of arraignment is sufficient by which the prisoner admits his identity and demands a trial. (People v. Frost, 5 Park., 52.)

(b) Court of sessions cannot arraign a murderer. — A prisoner indicted for murder cannot be arraigned in the court of sessions. (People v. McCraney, 21 How., 149.)

§ 297. (Amended 1882.) 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.

New.

§ 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.

New.

§ 299. (Amended 1882.) 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 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.

New.

§300. (Amended 1882.) Bench warrant, by whom, and how issued. The clerk, on the application of the district attor ney, may accordingly at any time after the order, whether the court be sitting or not, issue a bench warrant to one or more coun'ies. 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.

Jaws 1847, ch. 338; 3 R. S., 1022, § 57.

The

§301. (Amended 1882.) Form of bench warrant. 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:

Το any peace officer in this state. An indictment having been found on the

day of

eighteen hundred and 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 abovenamed 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 that 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 or county of New York, to the keeper of the city prison of the city of New York].

day of

§ 302. Direction in bench warrant if indictment be for misdemeanor. If the crime be a misdemeanor, the bench. warrant must be in a similar form, adding to the body thercof a direction to the following effect: "Or if he require it, that you take him before any magistrate in that county, or in the county in which you arrest him, that he may give bail to answer the indictment."

New.

-

§ 303. If offense be bailable, order for bail to be indorsed on bench warrant. If the crime charged be bailable, the court, upon directing the bench warrant to issue, may fix the amount of bail; and in such case an indorsement must be made upon the bench warrant and signed by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of dollars."

New.

§ 304. Bench warrant, how served. The bench warrant may be served in any county, in the same manner as a warrant of arrest, except, that when served in another county, it need not be indorsed by a magistrate of that county.

3 R. S., 1023, § 58; Laws 1847, ch. 338; Laws 1830, ch. 320, § 62.

$305. Proceedings on bench warrant when defendant is brought before magistrate of another county. If the defendant be brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto, in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings may be had thereon, as provided in sections one hundred and fifty-nine to one hundred and sixty-one, both inclusive.

New. (See, also, cases cited under §§ 159, 161, ante.)

§306. Ordering defendant into custody, or increasing bail, when indictment is for felony. - If the defendant, before the finding of an indictment, has given bail for his appearance to answer the charge, the court, to which the indictment is presented or sent or removed for trial, may order the defendant to be committed to actual custody, either without bail, or unless he give bail in an increased amount, to be specified in the order.

New.