#### The People of the State of New York, Respondent, *v.*Pasquale Motello, Appellant.

Second Department,

June 27, 1913.

Crime —murder — amendment of indictment.

Upon the trial of a defendant under a common-law indictment for murder, it is error to allow the indictment to he amended over objection, so as to strike out the words “malice aforethought ” from the charge that the crime was committed “wilfully, feloniously and of malice aforethought,” and a judgment convicting the defendant of murder in the second degree should be reversed and a new trial granted.

Appeal by the defendant, Pasquale Motello, from a judgment of the County Court of Orange county, rendered against him on the 18th day of January, 1912, convicting him of the crime of murder in the second degree.

*Henry Kohl,*for the appellant.

*J. D. Wilson, Jr,, District Attorney,*for the respondent.

Jenks, P. J.:

The question of murder in the first degree is not in the case. The charging common-law language of the indictment might well be held sufficient to sustain an indictment for that crime, but the language is as appropriate for the crime of murder in the second degree. *(People*v. *Osmond,*138 N. Y. 80; *People*v. *Giblin,*115 id. 196; *Fitzgerrold*v. *People,*37 id. 413; *People*v. *Conroy,*97 id. 62.) The defendant was arraigned, tried and convicted for murder in the second degree in a court of jurisdiction, and under a charge of correct instruction as to *511the elements of the crimes of which he could be convicted under the indictment.

But I think that there was a fatal error in the trial. The crime was charged to have been committed “wilfully, feloniously and of malice aforethought. ” At the beginning of the trial the assistant district attorney moved that the indictment be amended by striking out the words “malice aforethought, ” and his motion was granted over the objection 'of the defendant. The words stricken out could not be regarded as surplusage, for there were no equipollent words in the indictment. They were essential to a common-law charge of murder. In *People*v. *Enoch*(13 Wend. 159, 173) the chancellor says: “ Thus, in an indictment for murder, the terms *murder of his malice aforethought*are considered absolutely, necessary in describing the offence; and if these words are left out of the indictment, it will be deemed a case of manslaughter only.” (See, too, the comments of Denio, J., in *Barry*v. *People,*10 N. Y. 149; 2 Bish. New Crim. Proc. §§ 544-563, 564; Whart. Crim. Law [11th ed., Kerr], §§ 418-420, 422, 428; Bussell Crimes [7th Eng. ed.], 655; *Commonwealth*v. *Webster,*5 Cush. 295; *People*v. *Clark,*7 N. Y. 385.) Conceding that such power of amendment was in the court, then the defendant stands convicted of the crime of murder under an indictment for manslaughter.

But I am clear that the court had not this power. At common law no amendment could be made to an indictment. *(People*v. *Herman,*45 Hun, 177, and authorities cited; Washb. Crim. Law, 134, and authorities cited.) Such an amendment was not within the purview of the statute (Code Crim. Proc. § 293), which is limited expressly to variances between allegations and proof in respect to time or in the name of any place, person or thing. In effect this amendment changed substantially the bill found by the grand jury, and, therefore, was beyond the power of the court, especially in the face of the objection of the defendant. (1 Bish. New Crim. Proc. §§ 96, 97; *Ex parte Bain,*121 U. S. 1; *People v. Poucher,*30 Hun, 576; *People*v. *Trank,*88 App. Div. 296; *State*v. *Startup,*39 N. J. L. 423.) It matters not that the effect of such amendment was to change the indictment from murder to the lesser crime of manslaughter, *512for the reason that the principle violated rests not upon the effect of the amendment, hut upon the fact of any amendment. The reason for the rule as stated by the court in *Ex parte Bain (supra)*is that upon amendment the indictment is no longer that of the grand jury, and, therefore, there arises a violation of the 5th Amendment of the Constitution of the United States. (See, too, N. Y. Const, art. 1, § 6.) And the court in *Bain’s*case say in comment: “Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.” I note that in *Bain’s*case it is said that one *of*the avowed reasons that moved the judge at Circuit to allow the amendment was “ that no injury was done to the prisoner by allowing such change to be made.”

I think that there must be a reversal of the judgment without further consideration of the case. But I am of opinion that a new trial may and should be ordered. It cannot be said that-because’the court was powerless to permit the amendment, therefore the trial was legally upon the indictment found. *(Ex parte Bain, supra.)*If the trial court was powerless to change the indictment, the vain attempt to change it should not be effective to destroy it. This would be an illogical, a mischievous and perhaps a dangerous doctrine. The legal condition of the defendant is, I think, indicated by the Court of Appeals in *People*v. *Palmer*(109 N. Y. 419). He has appealed and asked for a reversal of the judgment of conviction. We have reversed that judgment for error in the trial without disturbance of the indictment. Such a reversal, to adopt the theory of the Court of Appeals, annuls and expunges the judgment and the record of the former trial as if they had never been. But the indictment remains as found and untried, and the defendant may now be brought to trial *513perforce of the power lodged in this court upon the hearing of such an appeal, and without impairment of his constitutional rights. *(People*v. *Palmer, supra.)*In the language of Gray, J., speaking for the court in the case last cited: “It would he a grievous miscarriage of justice, and the intent of the law would be thwarted if it should be held that a reversal, upon a prisoner’s appeal for errors of law upon his trial, had the effect of putting it out of the power of the People to further try him under the indictment, when his guilt might be competently established. We do not think such is the result.” Such was the procedure that was followed in *People*v. *Poucher (supra).*

The judgment of conviction of the County Court of Orange county is reversed and a new trial is ordered upon the indictment as found by the grand jury.

Burr, Thomas, Carr and Rich, JJ., concurred.

Judgment of conviction of the County Court of Orange county reversed, and new trial ordered upon the indictment as found by the grand jury.