The opinion of the court was delivered by
Barrett, J.The amendment was not for the purpose of curing a •“ formal defect apparent on the face of the indictment,” as expressed in sec. 1, No. 5, Acts of 1870. The face of the indictment did not show any defect. The object of the amendment was to make the designation of the particeps consistent with evidence that might be given showing that she, whose name was, in fact, Roxcena, was called for short, Rosa. In order to maintain the indictment, it was necessary to identify the person with whom the respondent committed the criminal act as being Roxcena, however she might be called. So the amendment was of doubtful necessity, to say the best of it. The adding of, “ otherwise called Rosa,” would not relieve the necessity of proving the person *734designated to be Roxcena, though some witnesses might know and designate her only by the name of Rosa. The person called Rosa must turn out to be the same as Roxcena. This amendment, therefore, would not vary the proof necessary to be made by the prosecution, nor exact other or more evidence in order to maintain the defence. Nor would it vary the record in its effect, as showing the precise crime charged and adjudicated. The amendment was not to avoid the effect of having designated the partioeps by a wrong name, but to render the averment of the partioeps consistent with evidence of her being called Rosa, while her name was in fact Roxcena. We think no error was committed in allowing the amendment. If it had varied the requirements of the law as to proof on either side, adversely to the respondent, or had varied the effect of the record as identifying the party and the crime covered by the adjudication, it would have been error to allow it.
It is to be noticed that the exceptions show as matter of proof, that she was known by both names, and state that “ it was proved that the said Roxcena, otherwise called Rosa Whitney, was married,” &c. As said by Woodruff, J., in Kennedy v. The People, 39 N. Y. 250, the alias “does not indicate that different persons are intended, but in pleading, both in civil and criminal actions, that the names mentioned are different descriptions of the same person.”
While the defect, if it be a defect, designed to be cured by the proposed amendment, was not “ apparent on the face of the indictment,” and could only appear when the evidence should be given, still, it must be regarded as “ a formal defeat.” As already shown it was not a defect in such a sense as to cause the requirement as to proof to be varied, to the prejudice of'the defendant, by the amendment if made. By the statute 14 and 15 Yict. c. 100, s. 1, such an amendment as was allowed in this case is specially provided for. Its language is, “ Whenever on the trial of any indictment for any felony or misdemeanor, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the name of any county, * * * or in the Christian name or surname, or both *735Christian name and surname, of any person or persons whomsoever therein named or described, it shall be lawful for the court, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such indictment to be amended,” &c. Sec. 25 of that statute is the same as sec. 1, No. 5, of our statute of 1870. In Roscoe’s Crim. Ev. 207, it is said: It probably was not intended by sec. 25 to increase the power of amendment given by sec. 1, but merely to prevent formal defects apparent on the face of the indictment being taken advantage of after verdict, by motion in arrest of judgment or otherwise.” The term, “ formal defect apparent on the face of the indictment,” is rather indefinite. Probably it would be held to mean such formal defects as may be amended by virtue of sec. 1. We have thus referred to the English statute, and quoted the remark in Roscoe, as bearing on what is to be regarded as formal defects, and thus being the subject of amendment under those statutes. It is obvious, without illustration, that a defect that does not affect the merits of the case, or the evidence necessary to be given to maintain the indictment, as is true in the case before us, can be regarded as only formal.
The evidence given by the prosecution in rebuttal, to the admission of which exception was taken, was properly admitted. The respondent had volunteered to testify beyond the scope of the question put to him by his counsel. He did it on his own responsibility as to the legal consequences that might ensue. What he stated was not foreign to the subject in litigation. He designed it to operate beneficially to himself as matter of fact, as showing the unlikelihood of his having done the act charged against him. In this view, it was proper to show the fact to be not as he testified. The prosecution had not opened the subject. So it is needless to debate whether it would have been proper to give such evidence in chief as was given in rebuttal. But when the respondent introduced in defence the matter of his non-access as he did, it was proper for the prosecution to meet it by counter evidence. The evidence in rebuttal was also proper by way of contradicting the respondent, and thus affecting his credit as a *736witness testifying in his own favor. As before said, he testified as he did, about never having had to do with the alleged particeps, for the purpose of helping his defence. So, what he thus testified was made by him a proper subject for contradiction, by way of impeaching his credit as a witness. In this respect he stands in a position peculiar to a respondent who becomes a witness, differing from that of a witness who is not at the same time a party. If the same testimony had been elicited by the question, it would not be for him or his counsel to say that it might not be met by counter evidence. Having volunteered it, it stands for the same consideration as if it had been elicited by the question. He took the risk of acting for himself beyond the limits indicated by his counsel in the question put.
The exceptions do not show any question made or saved as to the proof of respondent’s being a married man at the time of the alleged adulterous act. So the subject is not considered.
The exceptions are overruled, and judgment affirmed.