CHAPTER III. AMENDMENT OF THE INDICTMENT. SEC. 293. When amendment allowed. 294. Trial to proceed. 295. Effect of verdict, etc. § 293. When amendment allowed. 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 to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable. When denied. Peo. v. Poucher, 30 Hun, 576. § 294. Trial how to proceed. After such amendment, the trial, whenever the same shall be proceeded with, shall proceed in the same manner and with the same consequences, as if no such variance had occurred. § 295. Effect of verdict, etc. A verdict and judgment, which shall be given after the making of any such amendment, shall be of the same force and effect, as if the indictment had originally been found in its amended form. CHAPTER IV. ARRAIGNMENT OF THE DEFENDANT. SEC. 296. Defendant must be arraigned in the court in which indictment is found, if triable therein, or if not, in that to which it is sent or removed. 297. If indictment be for felony, defendant must be present; 302. Direction in bench warrant, if indictment be for mis- SEC 303. If offense be bailable, order for bail to be indorsed on bench warrant. 304. Bench warrant, how served. 305. Proceedings on bench warrant, when defendant is 307. Defendant, if present, to be committed; if not, bench 308. Defendant appearing for arraignment without counsel, to be informed of his right to counsel. 309. Arraignment, how made. 310. If he gave another name, subsequent proceedings to 311. Time allowed defendant to answer indictment. § 296. Where defendant must be arraigned.—When an indictment is filed, the defendant must be arraigned thereon, before the court in which it is found, or before the court to which it is sent or removed. When court of sessions cannot arraign. Peo. v. McCraney, 21 How. Pr., 149. See Peo. v. Pierson, 79 N. Y., 424. § 297. Appearance.-If an indictment be for a felony, the defendant must be personally present when arraigned; but if for a misdemeanor only, his personal appearance is unnecessary, and he may appear upon the arraignment by counsel. Presence in adjoining room. Peo. v. Bragle, 88 N.Y., 585; s. c, 26 Hun, 378. When unnecessary. Peo v. Vail, 57 How. Pr., 581. § 298. When in custody.-When his personal appearance is necessary, if he be in custody, the court may direct the officer in whose custody he is, to bring him before it to be arraigned. § 299. Failure to appear.-If the defendant have been discharged on bail, or have deposited money instead thereof, and do not appear to be arraigned, or if the defendant be for any cause absent, when his personal attendance is necessary, the court, in addition to the forfeiture of any undertaking of bail, or of any money deposited, may direct the clerk to issue a bench warrant for his arrest. § 300. Bench warrant, by whom issued. The clerk, on the application of the district attorney, may accord ingly at any time after the order, whether the court be sitting or not, issue a bench warrant to one or more counties. A bench warrant for the arrest of any defendant indicted, may also be issued by the district attorney at any time after the indictment is found. § 301. Form of bench warrant.-The bench warrant issued upon the indictment must, if the crime be a felony, be substantially in the following form: "County of Albany, [or as the case may be]. day of "In the name of the People of the state of New York: "To any peace officer in this state. An indictment having been found on the 18 in the court of sessions of the county of Albany [or as the case may be] charging C. D. with the crime of [designating it generally]. "You are therefore commanded, forthwith to arrest the above named C. D., and bring him before that court, [or if the indictment have been sent or removed to another court,] before the court of oyer and terminer of that county, [or as the case may be,] to answer the indictment; or if the court have adjourned for the term, that you deliver him into the custody of the sheriff of the county of Albany, [or as the case may be, or in the city and county of New York "to the keeper of the city prison of the city of New York."] "City [or town] of "By order of the court, the day of , 18 E. F. Clerk." or G. H., District Attorney of the county of What to state. Peo. v. Sherwin, 17 W D., 125. §302. Bench warrant in cases of misdemeanor. -If the crime be a misdemeanor, the bench warrant must be in a similar form, adding to the body thereof, a direction to the following effect: "or if he require it, that you take him before any magistrate in that county, or in the county in which you arrest him, that he may give bail to answer the indictment." § 303. If offense bailable, indorsement on bench warrant. — If the crime charged be bailable, the court, upon directing the bench warrant to issue, may fix the amount of bail; and in such case an indorsement must be made upon the bench warrant and signed by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of dollars." § 304. Bench warrant how served.—The bench warrant may be served in any county, in the same manner as a warrant of arrest, except, that when served in another county, it need not be indorsed by a magistrate of that county. $305. Proceedings before magistrate of another county. If the defendant be brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto, in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings may be had thereon, as provided in sections 159 to 161, both inclusive. §306. Ordering defendant into custody, or increasing bail. If the defendant, before the finding of an indictment, has given bail for his appearance to answer the charge, the court, to which the indictment is presented or sent or removed for trial, may order the defendant to be committed to actual custody, either without bail, or unless he give bail in an increased amount, to be specified in the order. § 307. Defendant, if present, to be committed; if not, bench warrant to issue.-If the defendant be present when the order is made, he must be forthwith committed accordingly. If he be not present, a bench warrant must be issued and proceeded upon, in the manner provided in this chapter. § 308. Defendant appearing without counsel.-If the defendant appear for arraignment, without counsel, he must be asked if he desire the aid of counsel, and if he does, the court must assign counsel. § 309. Arraignment, how made. The arraignment must be made by the court, or by the clerk or district attorney, under its direction, and consists in stating the charge in the indictment to the defendant, and in asking him whether he pleads guilty or not guilty thereto. If the defendant demand it, the indictment must be read, or a copy thereof furnished to him before requiring him to plead. §310. Misnomer.-If when arraigned the defendant allege that another name is his true name, the court must direct an entry thereof in the minutes of the arraignment; and the subsequent proceedings on the indictment may be had against him, by that name, referring also to the name by which he is indicted. § 311. Time to answer indictment. If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court deems reasonable, to answer the indictment. § 312. Answering indictment. In answer to the indictment, the defendant may either move the court to set the same aside, or may demur or plead thereto. Defendant cannot plead that grand jury was irregularly organized. Peo. v. Dolan, 6 Hun, 232; S. C., ib, 493; 64 N.Y., 485. See Hope v. Peo., 11 W. D., 386; Peo. v. Briggs, 60 How., 17. CHAPTER V. SETTING ASIDE THE INDICTMENT. SEC. 313. Indictment, when set aside on motion. 314. Defendant, when precluded from objecting to indictment in any other manner. 315. Motion, when heard. 316. If denied, defendant must immediately demur or plead. 317. If granted, defendant discharged, unless the case be submitted to the same or another grand jury. 318. Effect of order for re-submission. 319. When new indictment not found. 320. Order to set aside indictment, no bar to another prosecution. §313. Indictment, when set aside on motion. The indictment must be set aside, by the court in which the |