284 A.D. 974 | N.Y. App. Div. | 1954
Judgment of the County Court, Kings County, convicting defendant of the crime of grand larceny, first degree, reversed on the law and indictment dismissed. The findings of fact are affirmed. The indictment herein for larceny originally contained four counts, none of which charged the commission of the crime of grand larceny by fraud or pretense. During the examination of the first prosecution witness the People sought to elicit testimony tending to prove the commission of larceny by fraud and pretense. Upon objection by defense counsel that under section 1290-a of the Penal Law, this proof was inadmissible because the indictment did not charge the commission of such a crime, the prosecution moved to amend the indictment, pursuant to section 295-j of the Code of Criminal Procedure, to include an additional count charging the commission of the crime of grand larceny, first degree, by fraud and pretense and three other counts charging petit larceny by the same method. The trial court allowed the amendment, and prior to submitting the ease to the jury dismissed all counts of the indictment, save that of grand larceny, first degree, by fraud and pretense, upon which count defendant was convicted. At common law, the court was powerless to amend an indictment, and in this State, if an indictment is to be amended, the amendment must be made according to the proof. (Code Crim. Pro., §§ 293, 295-j; People V. Van Every, 222 N. Y. 74, 78.) Authority to amend according