
    The People of the State of New York, Respondent, v. William B. Johnson, Appellant.
    Where an indictment under the Penal Code (§ 284) for seduction under promise of marriage, is defective in not giving the correct surname of the female, the court, on trial, has power to cure the defect by directing an amendment.
    The provisions of the Code of Criminal Procedure, allowing such an amendment (§§ 6, 7, 275, 281, 293, 294, 295), are not violative of the provision of the State Constitution (art. 1, § 6), declaring that " no person shall be held to answer for a capital or otherwise infamous crime * * * unless upon presentment or indictment of a grand jury. ”'
    An abstract opinion of the court in its charge on the trial of a criminal action, not based on any evidence in the case, even if technically erroneous, is no ground for reversal on appeal. (Code of Criminal Procedure, § 542.)
    (Argued December 16, 1886 ;
    decided January 18, 1887.)
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department entered upon an order made November 9, 1886, which affirmed a judgment of the Court of Sessions of Jefferson county entered upon a verdict convicting the defendant of the crime of seduction under promise of marriage.
    The material facts are stated in the opinion.
    
      Thomas F. Kearns for appellant.
    Section 293 of the Code of Criminal Procedure has lodged with the court a new power in respect to indictments and authorizes their amendment in form merely, where technical informalities or clerical slips are apparent, but not to alter in the body of an indictment the finding of a grand jury upon oath as to any allegation of substance set forth in it. (1 Whar. Crim. Ev. [7th ed.], § 595; 1 Bish. Crim. Pro. [3d ed.], § 688.) The amendment the court authorized, is one in substance and not one in form. (State v. Startup, 39 N. J. L. 423; McLaughlin v. State, 45 Ind. 338, 346, 347; 1 Bish. Crim. Pl. [3d ed.], § 97; Whar. Crim. P. & P. [8th ed.], § 90; People v. Poucher, 30 Hun, 576, 578.) The identification by name, or by descriptive words of the person against whom the crime was alleged to have been committed, is a material and substantial allegation in an indictment. (1 Bish. Crim. P. [3d ed.], §§ 488, 677; Whar. Crim. P. & P. [8th ed.], § 116; Whar. Crim. Ev. [8th ed.], § 94; Heard’s Crim. Pl. 55, 58.)
    
      E G. Emerson, district-attorney, for respondent.
    There was no material variance between the allegations in the indictment and the proofs, but if there was it was cured by amendment. (1 Bish. Cr. Pro. [3d ed.], §§ 688, 689; 1 Chitty Cr. Law, 203, 216; 3 N. Y. R S. [6th ed.], 1022, § 54; People v. Powers, 6 N. Y. 50; Fleming v. People, 27 id. 329, 332, 333; Code Crim Pro. §§ 281, 284, 285, 293, 684; People v. Conroy, 97 N. Y. 62; People v. Menkin, 36 Hun, 90, 95; 1 Chitty Cr. Law, 297; 1 Stark. Crim. Pl. [2d ed ] 259; 2 Tidds Pr. 632, 640.) The amendment authorized is one in form, not in substance. (1 Bishop Cr. Pro. [3d ed.], §§ 97, 98; Com. v. Holley, 3 Gray, 458; People v. Poucher, 30 Hun, 576, 578.) The charge that the case was brought within the statute, even though the promise was conditional, to marry in case pregnancy resulted, was correct. (Penal Code, § 283; Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 id. 644; Armstrong v. People, 70 id. 52, 53; Crozier v. People, 1 Park. 453.) The court was not bound to amplify or repeat his charge. (O'Connell v. People, 87 N. Y. 377; Moett v. People, 85 id. 374; Walker v. People, 88 id. 82; Morehouse v. Yeager, 71 id. 594; Rexter v. Starin, 73 id. 601; Doyle v. Sharp, 74 id. 154, 160.)
   Danforth, J.

The defendant (appellant here) was by indictment accused of having seduced, under promise of marriage, and having sexual intercourse with one Mary Oliphant at the town of Wilna, she being an unmarried female of' previous chaste character. Upon a plea of not guilty the issue was brought to trial at a court of sessions in the county of Jefferson, when the complainant being called as the first witness testified that her name was in fact Mary Olivert. The court thereupon, on the application of the district-attorney, and against the objection and exception of the defendant, made an order, which, after reciting that “ it appearing upon said trial that the name of the party so alleged to have been seduced is Mary Olivert and not Mary Oliphant,” directed the indictment and all the proceedings therein to be so amended as to conform in that respect to the proof, by inserting the name of Mary Olivert in place of Mary Oliphant, and after evidence tending to support the charge had been given the defendant’s counsel requested the court to advise the jury to discharge the defendant upon the ground, among others, that there was a variance between the allegations of the indictment and the proof “ as to the name of the person alleged to have been seduced.” This was refused, and the court gave the case to the jury as one proper for their consideration. And in view of the defendant’s claim that the evidence permitted an inference that if any promise of marriage was made, it was not absolute, but conditional, if the complainant would let him have sexual intercourse with her, that if there was any trouble with her he would marry her; ” the judge charged that even though the defendant may have accomplished the seduction of this female under a promise to marry her on condition she became pregnant with child, that that comes within the purview of the statute and establishes the crime as well as if the promise and agreement to marry had been absolute and without condition.” To so much of the instructions as related to the force of a conditional promise, the defendant excepted. These two exceptions present the only questions upon which any doubt can be entertained upon this appeal.

Fvrst. The indictment alleges an ofíense against the statute (Penal Code, § 284), with certainty and precision. No ingredient is omitted, and the only objection is that the surname of the party injured is not stated with entire accuracy. At common law the person charged could require that the name of his accuser, as well as the nature of his crime, should be set forth with certainty, and a variance would have been fatal, unless overcome by the rule of idem sonans, as it was called, which in such cases was frequently resorted to in courts whose judges were astute to prevent the failure of justice, and whose jurors on such occasions had quick ears for harmony of sounds. In this instance it might be difficult to say that the sound of the woman’s name is not affected by the misspelling, but even in England the statute now governs and the court may cure the defect by directing an amendment. (14 & 15 Vict. C. 100, § 1.)

In this State the legislature has in like manner interposed, and an indictment is sufficient if it contains the title of the action, specifying the name of the court to which it is presented, the names of the parties, and a plain and concise statement of the act constituting the crime. (Code of Grim. Pro., § 215.) The parties are defined to be the People of the State, as plaintiff, and the party prosecuted, as defendant (id. §§ 6, 1), and the Code provides that when 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 (id. § 281), and covering, as must be conceded, the case before us, declares that when upon the trial of an indictment, a variance between its allegation and the proof in respect to the name of any person, 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, and after such amendment, the- trial is to proceed in the same manner, and the verdict and judgment have the same effect as if the indictment had originally been framed in its amended form.- (Id. §§ 293, 294, 295.)

It is contended, however, by the appellant, that this statute, so far as it allows such amendment, is in violation of the constitutional provision that “no person shall be held to answer for a capital or otherwise infamous crime * * * unless upon presentment or indictment of a grand jury.” We do not perceive that any security, thus afforded is taken away or impaired by the statute, or that it can have any other effect than to promote the ends of justice, by rendering of no- avail a purely technical objection, without depriving a defendant of any substantial right. The court not only .declared the variance immaterial, but the amendment was allowed at the very outset of the trial, and under circumstances which insured to the accused party a full and fair hearing upon the only issue which his plea made material — seduction and sexual intercourse under promise of marriage, with an unmarried female of previous chaste character. (Penal Code, § 284.)

The woman’s name was not essential in the description of the offense. It would have been enough, even under the former system of criminal procedure, to have described her as one whose name was to the jurors unknown, and the legislature did not exceed its power when it provided that if the proof showed the name to have been erroneously stated, the variance should not be to the advantage of the offender, unless he was in some way thereby “ prejudiced in his defense on the merits.” Such effect was not suggested to the trial judge, and the exception was argued upon the sole ground that the court had no legal power to permit the amendment.

Second. As to the other exception. There is no evidence in the case which justified the claim of the defendant that the promise was conditional. That referred to by the appellant, consists of an affidavit made by the complainant on the 11th of August, 1884, before a magistrate, and was introduced by the defendant. It could only bear upon the credibility of the witness, as showing conflicting statements, and was no doubt used for that purpose. It was admissible for no other. The complainant’s evidence proved an express and unconditional promise; the defendant denied that a promise of any kind was made. Ho other issue was presented, and that was in the fairest manner submitted to the jury. The charge of the judge, therefore, to which exception was taken, was a mere “ impertinence, or an abstract opinion out of the case,” induced by the defendant’s assertion, but founded on no evidence, and which could notin any reasonable view work prejudice to the prisoner. It is, therefore, even if technically erroneous, no ground for a new trial. (Gardner v. Picket, 19 Wend. 186; Code of Crim. Pro., § 542.) But as the question is not properly in the case, we express no opinion in regard to its merits. The evidence as to every element of the crime charged, was abundant both in chief and in corroboration, and while many exceptions were noted during the trial, we find none which affects any substantial right of the defendant.

The judgment should be affirmed.

All concur.

Judgment affirmed.  