tation occurred before the deceased ran from the kitchen, if not at the time the defendant left the Mosher house with the razor on his person.

The appellant has had a fair trial, his conviction was right and the judgment should be affirmed.

GRAY, EDWARD T. BARTLETT, HAIGHT, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur. Judgment of conviction affirmed.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES T. GEYER, Appellant.

Crimes power of trial court to amend indictment to conform with the proof - amendment which changes the crime charged constitutes reversible error erroneous admission of evidence.

Under section 293 of the Code of Criminal Procedure the court may amend an indictment to conform with the proof in respect to time, or the name or description of any place, person or thing, if the defendant cannot be thereby prejudiced in his defense on the merits; but it was not the purpose of the legislature to authorize the court by amendment to change the substantial elements and nature of the crime charged and thus in effect substitute a new indictment in the place of the one found by the grand jury.

Where an indictment charged the defendant with the larceny of a check for five hundred dollars on a given date, and the evidence established that the check was sent to him in a fiduciary capacity and that he indorsed and deposited it to his credit, as he rightfully might, and that his wrongdoing consisted in thereafter withdrawing and misappropriating the proceeds of the check thus deposited, it was reversible error to amend the indictment so that it charged the defendant with the larceny of "five hundred dollars, good and lawful money of the United States and of the value of five hundred dollars."

It is error, upon the trial of a defendant charged with larceny, to receive evidence of admissions made by him and tending to show that he had wasted or misapplied money belonging to an estate of which he had been the executor and trustee, where such acts had no relation whatever to the offense charged in the indictment.

People v. Geyer, 132 App. Div. 790, reversed.

(Argued October 18, 1909; decided November 9, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 11, 1909, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York, rendered upon a verdict convicting the defendant of the crime of grand larceny in the second degree.

The facts, so far as material, are stated in the opinion.

Charles Lex Brooke for appellant. The court erred in admitting in evidence the conversation between the defendant and complainant relative to moneys of estate of Captain Richardson, and of complainant's brother, over objection of defendant. (People v. Greenwall, 108 N. Y. 296 ; People v. Dorthy, 156 N. Y. 237; People v. Sharp, 107 N. Y. 422; People v. Sekeson, 111 App. Div. 490; People v. Molineux, 168 N. Y. 264; People v. Governale, 193 N. Y. 581; People v. Jones, 191 N. Y. 291; People v. Loomis, 178 N. Y. 400.) The court erred in permitting the amendment of the indictment on motion of district attorney by striking out the words "One written instrument or the evidence of debt, to wit, an order for the payment of money of the kind commonly called Bank Checks for the payment of and of the value of $500.00,” and by substituting therefor the words, "$500.00, good and lawful money of the United States, and of the value of $500.00.” (People v. Trank, 88 App. Div. 284; People v. Johnson, 104 N. Y. 213; People v. Formosa, 131 N. Y. 478; People v. Krank, 110 N. Y. 488; People v. Jackson, 111 N. Y. 362 ; People v. Jones, 129 App. Div. 772.)

William Travers Jerome, District Attorney (E. Crosby Kindleberger of counsel), for respondent. The court properly admitted the conversation between Robert Richardson and the defendant. (People v. Molineux, 168 N. Y. 264; People v. Pickens, 153 N. Y. 576; People v. Neff, 191 N. Y. 210; People v. Weber, 130 App. Div. 593; People v. Rogers, 192 N. Y. 331; People v. Cahill, 193 N. Y. 232; People v. Wenzel, 189 N. Y. 275; People v. Governale, 193 N. Y. 581;

Opinion of the Court, per HISCOCK, J.

[Vol. 196.

People v. Carlin, 194 N. Y. 448.) The defendant was not prejudiced by the amendment of the indictment. (Code Cr. Pro. §§ 285, 684; People v. Johnson, 104 N. Y. 213; People v. Formosa, 131 N. Y. 478; People v. Emerson, 53 Hun, 437; People v. Krank, 110 N. Y. 488; People v. Jackson, 111 N. Y. 362; People v. Jones, 129 App. Div. 772; 195 N. Y. 547; People v. Dunn, 25 N. Y. S. R. 460; People v. Hagan, 14 N. Y. Supp. 233; People v. Herman, 45 Hun, 175; People v. Richards, 44 Iun, 278; People v. Coombs, 36 App. Div. 284; 158 N. Y. 532.)

HISCOCK, J. The appellant has been convicted of the crime of grand larceny in the second degree, and on this appeal urges two reasons which, as I think, necessitate a reversal of his conviction.

The indictment charged that the subject of his alleged larceny was "one written instrument and evidence of debt, to wit, an order for the payment of money of the kind commonly called bank checks, for the payment of and of the value of five hundred dollars," and that the larceny occurred November 15, 1902.

The evidence tended to establish that at about the date mentioned a check for $500 was sent to the appellant in a fiduciary capacity and that he indorsed and deposited it to his credit as he rightfully might, and that his wrongdoing consisted in thereafter withdrawing and misappropriating the proceeds of the check thus deposited. It was perceived and conceded by the district attorney on the trial that the charge of the indictment was not sustained by this evidence, which had been duly objected to, and he thereupon moved that the indictment be amended so as to conform to the evidence as above summarized, by charging larceny of "Five hundred dollars, good and lawful money of the United States and of the value of Five hundred dollars." This amendment was allowed in spite of the timely and proper objections of the appellant, and its allowance is one of the errors to be considered. As I have indicated, I think its allowance was improper.

N. Y. Rep.] Opinion of the Court, per HISCOCK, J.

The trial court permitted and the district attorney now seeks to justify this amendment under the provisions of section 293 of the Code of Criminal Procedure, which read as follows: "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 judgment, 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 the court may deem

reasonable."

*

*

I do not think that this section contemplates or authorizes any such amendment as was permitted in this case. The general object of the section is perfectly obvious. It is in line with other sections of the Code and was intended to prevent the escape of guilty persons and a miscarriage of justice by reason of inconsequential technicalities, and to this end it materially enlarged the powers of the trial court to prevent any such undesirable results by ainendirents of the nature specified.

It not infrequently happens that an indictment sets forth many details which are proper in alleging and describing the crime, but which surround and in some degree characterize, rather than constitute the real substance and body of, the offense charged and the allegation of which may be amended without changing the identity of the crime or of the subject of the crime and without impairment of the rights of the accused person. Such amendments are within the letter and spirit of the statute. But of course it could not have been and was not the purpose of the legislature to attempt to authorize the trial court by amendment to change the substantial elements and nature of the crime charged and in effect substitute a new indictment in the place of the one found by the grand jury.

Illustrations of the two classes of amendments which might be proposed readily occur to the mind. If the indictment charged the accused with stealing a horse and alleged that the latter was of one color or of one age, when as a matter of fact it was of another, it is apparent that the court would be

Opinion of the Court, per HISCOCK, J.

[Vol. 196.

justified in allowing an amendment to cure this variation of evidence. The substance of the crime charged in either case would be the larceny of a horse; the latter's age or color would be an inconsequential detail. If, on the other hand, the indictment having charged the accused with stealing such a horse, the evidence should show that he had in fact stolen a wagon or some entirely different article of personal property than that specified in the indictment, it is quite clear that the court would not be justified in amending the indictment to fit such evidence. In such case the very substance of the crime would be involved in the variation and to permit an amendment would quite change the identity of the crime although in either case it might continue to be grand larceny.

The amendment under consideration in this case is of the latter character rather than of the former. The appellant was charged with stealing a check on a given date. He was convicted of misappropriating at a different date the proceeds of a check which he had a perfect right to receive and procure to be cashed. The property set forth in the indictment and that for the alleged larceny of which he has been convicted were entirely distinct and distinguishable. The check mentioned in the indictment had a well-defined character and value of its own (Penal Code, § 545), and for the purposes of this discussion is not to be regarded at all as the same thing as bills or coin. The variation between indieting a man for stealing a horse and convicting him for stealing articles of household furniture would not be any more pronounced in principle than the variation between the indictment and proof in the present case. In fact the very authorities cited by the district attorney to sustain his position on this appeal make it perfectly clear that he is wrong and that this amendment is not of the character authorized.

In People v. Richards (44 Iun, 278, 286) the court had before it for discussion an amendment of an indictment allowed for the purpose of conforming its allegations to the proof in respect to the ownership of a vault in a cemetery into which the defendant was alleged to have broken. The sub