People v. Clegg — 32 N.Y. St. Rep. 701

Majority

p. 701

The People, Resp’ts, v. Daniel W. Clegg, App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Indictment — Amendment.

An indictment for the- crime of libel may be amended upon notice by inserting words accidentally omitted, which constituted a part of the published libel. The defendant cannot be surprised or misled by such amendment.

Appeal from judgment of. court of sessions convicting defendant of the crime of libel.

Defendant had been a tenant of one Philip Wolff and had been dispossessed for non-payment of rent, and had prepared and circulated the article set forth in the opinion.

On the trial evidence was given to show that the note mem. tioned therein was paid in 1860.

George C. Coffin, for app’lt; Thomas W. Fitzgerald, dist. atty., for resp’ts.

The defendant was'convicted at a court of sessions ¡held in Richmond county of the crime of libel under § 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.

u Witness: Thomas Garrett.

“ This much of a wealthy man who, then poor, now has pride in villifying one or more of his tenants, without mercy; to add to his wealth. ¡Note not paid.

November, 1887.

p. 702

. “A Victim.

“My dear Philip Wolff (police commissioner) permit me to 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, S. I.

“How about truth v. villification.”

The circular was clearly libelous in its terms and it appeared" 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 indictment, upon notice by inserting the words “Note not paid” and the defendant claims to have been prejudiced thereby.

The 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 § 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.

Barnard, P. J., concurs; Dykman, J., dissents.