
    The People of the State of New York, Respondent, v. Guiseppe Castaldo, Appellant.
    First Department,
    November 3, 1911.
    Crime — assault, first degree — Indictment — misstatement as to person defendant intended to kill —immaterial variance between indictment and proof — amendment — technical. errors not affecting substantial rights.
    An indictment drawn in the common-law form charging the crimes of assault in the first and second degree examined, and held, to warrant a conviction of the defendant of the crime as defined by the provisions of the statute.
    As the Penal Law, section 240 (Penal Code, § 217), provides that one who with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, assaults another with a loaded firearm, etc., is guilty of assault in the first degree, and as section 281 of the Code of Criminal Procedure provides that 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, a defendant may be convicted of assault in the first degree under an indictment charging an assault upon P., with intent to kill P., although the proof shows an intent to kill G-.
    As the variance between the indictment and the proof consisted merely of an erroneous description of the person whom the defendant intended to kill, it might have been summarily cured .by an amendment at trial.
    Moreover, it is immaterial that such amendment was not in fact made as under section 542 of the Code of Criminal Procedure, the court must give judgment without regard to technical errors or defects not affecting the substantial rights of the parties.
    . Appeal by the defendant, Guiseppe Castaldo, from a judg-. nient of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 6th. day of May, 1910, convicting him. of the crime of assault in the first degree under an indictment'found on the 17th day of January, 1910.
    The indictment is as follows:
    
      “The Grand Jury of the County of Yew York, by this .. indictment, accuse Guiseppe Castaldo, of the Crime of Assault in the First Degree, committed as follows:
    “ The said Guiseppe Castaldo, late of the Borough' of Manhattan, of The City of Yew York, in the County of Yew York aforesaid, on the fourteenth day of July, in the year of our Lord one thousand nine hundred nine, at the Borough and County aforesaid, with force and arms, in and upon one Pasquale Alloca, in the peace of the said People 'then and there being, feloniously did make an assault, and to, at and against him, the said Pasquale Alloca, a certain pistol then and there loaded and charged with gunpowder and'one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right .hand then and there had and held, the same being a deathly and dangerous weapon, wilfully and feloniously did then and there shoot off and discharge, with intent him, the said Pasquale Alloca, thereby then and there feloniously and. wilfully to kill, against the form of the statute in such case made-. and provided,- and against the peace of the People of the State of Yew York, and their dignity. • .
    “ Second Count:
    “And the Grand Jury aforesaid, by this indictment, further accuse the said Guiseppe Castaldo of the Crime of Assault in the Second Degree; committed as follows: .
    “The said Guiseppe Castaldo, late of the Borough and County aforesaid, on the day and in the year aforesaid, at the. Borough and County' aforesaid, with force and arms, in and upon the said Pasquale Alloca, in the peace of -the said People then and there being, feloniously did wilfully and wrongfully make- an assault, and to, at and against him, the said Pasquale Alloca,.a certain pistol then and there charged and loaded with gunpowder and one leaden bullet, which said pistol the said . Guiseppe Castaldo, in his right hand then and there had and held, the same being a weapon and an instrument likely to produce grievous bodily harm, then -and there feloniously did wilfully and wrongfully' shoot off and discharge against the form of the statute in such case made and provided, and against the peace of the People of the State of Yew York and their dignity.”
    
      
      Isidor J. Kresel, for the appellant.
    
      Robert C. Taylor, for the respondent.
   Scott, J.:

This is an appeal from a,judgment of the Court of General Sessions, New York county, convicting’ the defendant of the crime of assault in the first degree. _The indictment is in the common-law form and charges that the defendant “with force and arms, in and upon one Pasquale Alloca, in the peace of the'said People then and there being, feloniously did make an assault, and to, at and against him, the said. Pasquale Alloca, a certain pistol then and there leaded and charged with gunpowder and one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right hand then and there had and held, the same being a deathly and dangerous weapon, wilfully and feloniously did then and there shoot off and discharge, with intent him, the said Pasquale. Alloca, thereby then and there feloniously and wilfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity.”

Under such an indictment it seems that the defendant could properly be convicted of the crime charged by proof of the crime as defined by the provisions of the Penal Law. (People v. Enoch, 13 Wend. 159; People v. Darragh, 141 App. Div. 408; affd., 203 N. Y. 527, without opinion.) The evidence was such that the jury might have found that although the defendant did in fact shoot Pasquale Alloca he did so with intent to kill one Giovanni Alloca, and the appeal calls in question the ruling of the trial court to the effect;that if “the defendant intended to kill the brother [Giovanni], but struck the complaining witness [Pasquale] with the intention of killing the brother [Giovanni] it would be assault in the first degree ” as charged in the indictment. This the defendant claims to be erroneous for two reasons, first, because it authorizes a conviction for a crime not charged in the indictment, and second,, because it authorizes the jury to dispense with the element of intent made necessary by the statute under which the indictment is drawn. These two grounds . of objection to the judgment (which are in effect identical) are argued with, much force and plausibility, the insistence being that a charge of intent to kill Pasquale cannot be sustained by evidence showing an intent to kill another, in this case Giovanni. Support for these objections is sought to be found in Hollywood v. People (3 Keyes, 55) wherein the Court of Appeals held (in 1866) that a charge of assault upon Mrs. Baily with- intent to kill her was not sustained by proof that the defendant shot at Mr. Baily intending to kill him only, but accidentally hit Mrs. Baily. This of course would be a controlling authority, if the same statutory definition of the crime now prevailed winch did prevail in 1866. The same statutory definition does not, however, prevail, and the present definition is far broader and more comprehensive. The Hollywood case arose under the Revised Statutes, which were then in force, and thus defined the.crime with which Hollywood was charged: “Every person who shall be convicted of shooting at another, or of' attempting to discharge any kind of fire arms, or any air-gun, at another, or of any assault and battery upon another, by means of any deadly weapon,- or by-such other means or force, as was likely to produce death; with the intent to kill, maim, ravish or rob such other person, or in the attempt to commit any burglary, larceny or other felony, or in resisting the execution of any legal process; shall be punished by imprisonment in a State prison for a term not more than ten years. ” (R. S. pt. 4, chap. 1, tit. 2, art. 2 [2 R. S. 665], § 36.) The crime for Which the present defendant was convicted is thus defined by the Penal Law: “A person who, with an intent to kill a human being, or to commit a felony 'upon the person or property of the one' assaulted, or of another: .

“ 1. Assaults another with a loaded fire arm, or any other deadly weapon, or by any other means or force likely to produce death; or,
“ 2. Administers to * * * another, poison, * * *;
■ “ Is guilty of assault in the first degree.”

(Penal Law [Penal Code, § 217], § 240.)

The distinction between the two statutes is obvious when their terms are compared. The crime as defined by the Revised Statutes consisted of an' assault upon a person with intent to kill, maim, ravish or rob the person assaulted, while the crime defined by the Penal Law consists of an assault upon a person with intent to kill any human being or to commit a felony upon the person assaulted or another person. The elements of the crime are (1) an assault and (2) an intent to kill, and it is immaterial whether the intention is to kill the person.assaulted or another. It is. therefore manifest, and this appears to be conceded by the defendant, that the ruling excepted to would have been unassailable if the indictment had charged, as it might well have done, that the defendant shot Pasquale with intent to kill Giovanni. At the most, even if the evidence showed the intent to kill Giovanni and not Pasquale, there was presented nothing more than a variance between the charge and the proof, which could in no wise have prejudiced the .defense. To such a case section 281 of the Code of Criminal Procedure directly applies. It says: “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 indictment as it stands undoubtedly describes the defendant’s “act” in shooting.with “sufficient certainty” to “identify ” it within the meaning of the section above quoted. It specifies accurately the time, place and weapon used and the name of the person assaulted. If there was a variance between the indictment and the proof it consisted only in an erroneous description of the person whom the defendant intended to kill. This was such a variance as might have been summarily cured by amendment upon the trial. (Code Crim. Proc. §§ 293-295.) It is true that no amendment was in fact made, but that fact is unimportant. By section 542 of the Code of Criminal Procedure it is made the duty of the appellate court to give judgment without regard to technical errors or defects not affecting the substantial rights of the parties. The error, if it was one, in misdescribing the person against whom the defendant entertained the deadly intent, was such an error as is contemplated by section 542, and,, as it might have been cured by a summary amendment of . the indictment, the failure to make such amendment in no manner prejudiced the defendant, and may well he disregarded. (People v. Coombs, 36 App. Div. 284, 289; affd., 158 N. Y. 532; People v. Formosa, 131 id. 478, 481.)

It follows that the judgment of conviction must be affirmed.

Ingraham, P. J., Laughlin,- Clarke and- Dowling, JJ.-, concurred.

Judgment  