
    People v. Clegg.
    
      (Supreme Court, General Term, Second Department.
    
    July 18, 1890.)
    Indictment—Allegations and Proof—Amendment.
    On the trial of an indictment for libel, which omits, by mistake, three words of the published libel, which is set out in the indictment, the indictment may be amended by the insertion of the words to conform to the proof, under Code Grim. Proc. § 293, providing that the court may, in its judgment, allow such amendment, if the defendant cannot be prejudiced in his defense on the merits thereby.
    Appeal from court of sessions, Richmond county.
    Conviction of D. W. Clegg of the crime of libel, published against Philip Wolf. Defendant appeals. Code Grim. Proc. 1ST. Y. § 293, provides that, upon the trial of an indictment, if there is a variance between the allegation and the proof as to time, or in the name or description of any place, person, or thing, the court may, in its judgment, if the defendant cannot be prejudiced in his defense on the merits, allow the indictment to be amended.
    . Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    
      Thos. W. Fitzgerald, Dist. Atty., for the People.
   Pratt, J.

The defendant was convicted, at a court of sessions held in Richmond county, of the crime of libel, under section 242 of the Penal Code. The libel consisted of a circular printed and circulated, of which the following: is a copy;

“$50.00.
“Ninety days after date, I promise to pay Charles Schmeiser the sum of fifty dollars, or order, for value received.
“Dated Southfield, March 30,1860.
Philip Wolff.
“Witness: Thomas Garrett.”
“This much of a wealthy man who, then poor, now has pride in vilifying one or more of his tenants, without mercy, to add to his wealth. «Note not. paid.’
“Nov. 1887.
A Victim.”
“•a victim.’ '
“My dear Philip Wolff, (police commissioner,) permit meta inform you that the original of said above.copied note, neatly framed and adorned, (you too, no doubt, will be permitted to see it,) can be seen at the Widow Schmeiser’s Hall, corner of Wright and Water streets, Stapleton, Staten Island.
“How about truth vs. vilification.”

The circular was clearly libelous in its terms, and it apppeared fairly from the evidence that it was false, and published in malice. The evidence fully justified the verdict. So that, unless some error was committed upon the trial, the judgment must stand. The court allowed the district attorney to amend the indicement, upon notice, by inserting the words, “Note not paid;” and the defendant claims to have been prejudiced thereby. These words were a part of the published libel that had been accidentally omitted. As soon as the article was put in evidence, these words were necessarily shown as a part of the case. The defendant could not have been surprised or misled, as these words were a part of the libel, and by inserting them the indictment was made to conform to the proof. Such an amendment was authorized by section 293 of the Code of Criminal Procedure, and in no way prejudiced the defendant. We have examined all the exceptions, and find none of sufficient importance to demand discussion. Judgment affirmed. All concur.  