Defendant was arrested on December 17, 1952, charged with driving while intoxicated, and on the same day the arresting officer filed an information against him in the City Court of Binghamton. When the case came up for trial some time later — on February 9, 1953 — it was discovered that the information recited that the crime was committed on December 17, 1953, instead of December 17, 1952. The district attorney thereupon moved to amend in order to correct the misdating, and the court granted the motion over defendant’s objection that the information was “ defective as a matter of law.” After a trial, defendant was adjudged guilty, fined $100 and his license revoked. Upon appeal, however, the conviction was reversed, upon the ground that the information was invalid and not susceptible of amendment. The appeal is here by permission of a justice of the Appellate Division.
We will not uphold a conviction obtained illegally or without jurisdiction, even though the record evidence stamps defendant plainly guilty. But to here sustain the reversal of the conviction and hold impermissible an amendment made solely to correct an obvious typographical error in the information — a date not yet come — would be to exalt form over substance, to enthrone technicality purely for its own sake. The police officer who had made the arrest and signed the information was in court at the time the amendment was sought and actually testified against defendant. Had that officer then and there sworn to a new information — with the year correctly given as 1952 — no valid objection could have been raised, for defendant had ample notice of the crime charged, and, as his attorney acknowledged, the correction of the date occasioned him no surprise or prejudice. Under the circumstances of this ease, what could have been effected by the preparation of a new information was properly accomplished by amendment of the one already on file. There was neither reason nor necessity for another piece of paper.
Decisions dealing with indictments (People v. Van Every, 222 N. Y. 74; People v. Guiley, 222 N. Y. 548) are entirely inapposite, and defendant’s reliance upon them misplaced. Whatever the rule with respect to amending an indictment which charges a crime as having been committed subsequent to its *339presentment by the grand jury, the considerations there controlling, the considerations which there gave rise to the rule, are not present in the case of an information. An indictment requires the action and intervention of a grand jury. There is no substitute for that body, and a court may not, by seeking to effect an amendment of a substantial character, ‘ ‘ make good an invalid indictment and thus exercise the functions of the grand jury ”. (People v. Van Every, supra, 222 N. Y. 74, 78.)
The very reason for that rule, however, indicates the inappropriateness of applying it where the People seek to amend an information filed in the City Court of Binghamton. In such a case, there is no need for action by a grand jury and no requirement that any particular body or agency present or vote the information. Since there can, therefore, be no question of the court’s usurping the function of the grand jury, no reason exists for invoking the rule barring such a usurpation, and no purpose is to be served by so doing. Accordingly, as has elsewhere been held, a court has the power to amend an information even though the amendment may affect a matter of substance. (See, e.g., State v. Pritchard, 35 Conn. 319, 326; State v. Jensen, 83 Utah 452, 454-455; State v. Barrell, 75 Vt. 202, 204; see, also, 1 Wharton on Criminal Procedure [10th ed., 1918], §§ 128,132.) Illuminating is this statement from the old English case of Rex v. Wilkes (4 Burr. 2527, 2569) quoted with approval by the United States Supreme Court in Ex Parte Bain (121 U. S. 1, 6): “ There is a great difference between amending indictments, and amending informations. Indictments are found upon the oaths of a jury; and ought only to be amended by themselves: but informations are as declarations in the king’s suit. An officer of the Crown has the right of framing them originally; and may, with leave, amend, in like manner as any plaintiff may do.”
Since, then, there was power to permit the amendment, and no question being raised as to defendant’s guilt, the order of the county court should be reversed and the judgment of the city court reinstated.