§ 266. Grand jury, when bound to disclose the testimony of a witness. - A member of the grand jury may, however, be required by any court, to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or to disclose the testimony given before them by any person upon a charge against him for perjury in giving his testimony, or upon his trial therefor. See 12 Cr. L. Mag, 583. 8267. Grand juror not to be questioned for his conduct as such. — A grand juror cannot be questioned for anything he may say, or any vote he may give, in the grand jury relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty, in making an accusation or giving testimony to his fellow jurors, TITLE V. OF THE INDICTMENT. CHAPTER I. Finding and presentation of the indictment. II. Form of the indictment. III. Amendment of the indictment. IV. Arraignment of the defendant. V. Setting aside the indictment. VI. Demurrer. VII. Plea. VIII. Removal of the action before trial. CHAPTER I. FINDING AND PRESENTATION OF THE INDICTMENT. SECTION 268. Indictment must be found by twelve grand jurors, and indorsed by foreman. 269. If not so found, depositions, etc., must be returned to the court, with dismissal indorsed. 270. Effect of dismissal. 271. Names of witnesses must be indorsed upon indictment. 272. Indictment must be presented in presence of the grand jury and filed. $268. Indictment must be found by twelve grand jurors and indorsed by foreman.- An indictment cannot be found without the concurrence of at least twelve grand jurors. When so found it must be indorsed, "a true bill," and the indorsement must be signed by the foreman of the grand jury. That twelve grand jurors must concur, see 1 Bish. Crim. Proc., § 697; People v. Shattuck, 6 Abb. N. C. 33; Dawson v. People, 25 N. Y. 403. As to indorsement by foreman, see 1 Bish. Crim. Law, § 698; McGuffie v. State, 17 Ga. 497; State v. Brown, 31 Vt. 602; Wall v. State, 23 Ind. 150. See as to "signing." Hamilton v. State, 103 Ind. 96; 53 Am. Rep. 491, note. In Brotherton v. People, 75 N. Y. 162, the court say: "The certificate of the foreman is no part of the indictment, but is the statutory mode of authenticating it, and the record furnishes evidence that it was so authenticated." State v. Taggart, 38 Me. 298; State v. Hogan, 31 Mo. 342. - § 269. If not so found, depositions, etc., must be returned to the court, with dismissal indorsed. If twelve grand jurors do not concur in finding an indictment, the depositions (and statement, if any) transmitted to them, must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed. The grand jurors may be examined as to whether or not twelve grand jurors concurred in the finding. People v. Shattuck, 6 Abb. N. C. 33. See People v. Briggs, 60 How. Pr. 17. Should return "not a true bill or "not found." 1 Bish. Crim. Proc., § 697; State v. Horton, 63 N. C. 595, Esterlong v. State, 35 Miss. 210. § 270. Effect of dismissal.—The dismissal of a charge does not, however, prevent its being again submitted to a grand jury as often as the court may so direct. But without such direction it cannot be again submitted. A criminal charge may be re-submitted to the grand jury as often as the court may so direct. People v. Lynch, 20 Weekly Dig. 9. See People, e≈ -¿l., v. Sheriff, 11 Civ. Proc. 186. In People v. Warren, 109 N. Y. 617, defendant struck one D. a blow on December 13, inflicting injuries which proved his death on January 5, following. A presentation to the grand jury was made during the life-time of D. upon a complaint of assault and battery, but it failed to find an indictment. After the death of D. an indictment charging defendant with the crime of manslaughter in the second degree was found for the same assault. Held, that it was not necessary to obtain leave of the court before submitting to the grand jury the complaint on which it found said indictment. That a conviction even of the offense of assault and battery would have been no bar to a prosecution for the graver crime subsequently developed. 8271. Names of witnesses must be indorsed upon indictment.-When an indictment is found the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, as provided in section two hundred and fifty-five, must be indorsed upon the indictment before it is presented to the court. If not so indorsed, the court must, upon the application of the defendant, at any time before trial, direct the names of such witnesses as they appear upon the minutes of the grand jury, to be furnished to him forthwith. See People v. Naughton, 38 How. Pr. 430; 7 Abb. Pr. (N. S.) 421; Eighmy v. People, 79 N. Y. 546; People v. Jaehne, 4 N. Y. Cr. Rep. 166; State v. Shores, 31 W. Va. 491; 13 Am. St. Rep. 875. § 272. Indictment must be presented in presence of the grand jury and filed. An indictment, when found by the grand jury, as prescribed in section two hundred and sixtyeight, must be presented by their foreman in their presence to the court, and must be filed with the clerk, and remain in his office as a public record, but it must not it shown to any person other than a public officer, until the defendant has been arrested or has appeared. 1 Dawson v. People, 25 N. Y. 405-406, the court say: "There being no words in the statute indicating an intention on the part of the legislature that the indictment should be void if not so filed, this provision must be regarded as merely directory. 3 Mass. 232; 6 Wend. 486; 6 Hill, 42; id. 646; 3 Den. 526; 9 Paige, 17; 2 N. Y. 134; 1 Burr. 447; Smith's Com. on Statutes, §§ 670680." CHAPTER II. FORM OF THE INDICTMENT. SECTION 273. Forms of pleading heretofore existing, abolished. 274. First pleading for the people, is indictment. 275. Indictment, what to contain. 276. Form of indictment. 277. When defendant is indicted by fictitious or erroneous name, his true name may be inserted in subsequent proceedings. 278, 279. Indictment must charge but one crime and in one form, except where it may be committed by different means. 280. Statement as to time when crime was committed. ⚫ 281. Statement as to person injured or intended to be injured. 283. Words used in a statute Leed not be strictly pursued. SECTION 284. Indictment when sufficient. 285. Indictment not sufficient for defect of form, not tending to prejudice defendant. 286. Presumptions of law and matters of which judicial notice is taken, need not be stated. 287. Pleading a judgment or determination of, or proceeding before a court or officer of special jurisdiction. 288. Private statute, how pleaded. 289. Pleading in indictment for libel. 290. Pleading in indictment for forgery, where the instrument has been destroyed or withheld by defendant. 291. Pleading in indictment for perjury or subornation of perjury. 292. Upon indictment against several, one or more may be convicted or acquitted. § 273. Forms of pleading heretofore existing abolisned All the forms of pleading in criminal actions, heretofore existing, are abolished; and hereafter, the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code. See People v. Willson, 109 N. Y. 351; People v. Dumar, 106 id. 509; People v. Conroy, 97 id. 62; People v. Rugg, 98 id. 536; People v. Menken, 36 Hun, 94; 3 N. Y. Cr. Rep. 237; People v. Petrea, 30 Hun, 98; 64 How. 139; 1 N. Y. Cr. Rep. 198; affirmed, 92 N. Y. 128; 65 How. 59; 1 N. Y. Cr. Rep. 233; People v. Duan, 53 Hun, 384. § 274. First pleading for the people, is indictment.— The first pleading on the part of the people is the indictment. § 275. Indiotment, what to contain. - The indictment must contain: 1. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; 2. A plain and concise statement of the act constituting the crime, without unnecessary repetition. See People v. Bliven, 112 N. Y. 87; People v. Willson, 109 id. 351; People v. Dimick, 107 id. 29; 41 Hun, 621; People v. Dunn, 53 id. 384; People v Burns, id. 276; People v. Everest, 51 id. 23; People v. Klock, 48 id. 276; People v. Barber, id. 199; People v. Reavey, 38 id. 421; People v. Moore, 37 id. 87; People v. Bellows, 1 How. Pr. (N. S.) 151; People v. Peck, 2 N. Y. Cr. Rep. 315; People v. Farrell, 28 State Rep. 44; People v. Harris, 33 id. 168. Where an indictment consists of two counts, only one of which is submitted to the jury, a reversal by the general term of a conviction thereon, on the ground of the insufficiency of the evidence under that count, will not be in terfered with, although the evidence authorized a conviction under the othe count. People v. Conroy, 97 N. Y. 62; 2 N. Y. Cr. Rep. 565. Does not prohibit the charging of the offense in different form in different counts; and such an indictment is not subject to the objection that it charges more than one crime. People v. Rugg, 98 N. Y. 537. The common-law doctrine as to repugnant allegations still obtains under this section, for if there be inconsistent or incongruous allegations in a count, the crime cannot be said to be stated plainly, or at all. Accordingly, where the charging part of the indictment alleges a tampering with a certificate of a statement relating to the result of an election, and afterward a mere copy of a statement is set forth, the count is bad for repugnancy. People v. Wise, 3 N. Y. Cr. Rep. 303; 2 How. Pr. (N. S.) 98. Sections 275, 276, Code Crim. Proc., do not deprive the people of the right to state the acts constituting the supposed crime in different counts in different language appropriate to meet such circumstances and features of the event as may be developed on the trial, especially where there was no eye-witness of the event and the facts must be proved by circumstantial evidence. People v. Menken, 36 Hun, 92; 3 N. Y. Cr. Rep. 233. Objection that indictment does not conform to sections 275-6 can only be taken by demurrer. People v. Conroy, 97 N. Y. 62; 2 N. Y. Cr. Rep. 565; People v. Carr, 3 id. 578. Under this section the indictment must charge both the crime and the act constituting it; the omission of either is fatal. People v. Dumar, 106 N. Y. 502; 42 Hun, 83; 5 N. Y. Cr. Rep. 57. An indictment charging the defendant with having committed the crime of perjury by giving material evidence in an action between certain parties for a limited divorce, contains a sufficient statement of the nature of the action in which it is claimed that the perjury was committed. People v. Grimshaw, 20 Week. Dig. 116; 33 Hun, 507. $276. Form of indictment. The indictment should be signed by the district attorney, and may be substantially in the following form: Court of oyer and terminer of the county of the proper county]; or, [stating Court of oyer and terminer of the city and county of New York; or, Court of sessions of the county of county]; or, [stating the proper Court of general sessions of the city and county of New York; or, City court of the city of [stating the proper city). THE PEOPLE OF THE STATE OF NEW YORK against |