Section 9245 of Howell’s Statutes provides that—
“Every person who shall convey into any jail, prison, or other like place of confinement, any disguise, or any instrument, tool, weapon, or other thing, adapted or useful to aid any prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, * * * shall be punished,” etc.
■ The information in this case charged that the respondent, on the 26th day of October, 1893,— *
“Did feloniously and unlawfully convey unto the jail aforesaid, to wit, four keys, the said keys being adapted and useful to aid any prisoner in making his escape, with intent to facilitate the escape of the said George W. Deuel from said jail, he-being such-prisoner as’aforesaid.”
The respondent was convicted, and, after conviction, moved in arrest of judgment, alleging, as one ground for the motion, that the information did not cover the offense defined by the statute. The motion for arrest of judgment was overruled. It is contended by the counsel for the people that under the rule laid down in McRae v. Lumber Co., 102 Mich. 488, this question cannot be passed upon in this Court, for the reason that the circuit judge, in refusing a new trial, did not give his reasons. That case, however, was based upon a statute relating to a *701review of motions for a new trial. In the present case the question raised is one which was open to review by the Court before the enactment of this statute. A motion in arrest of judgment has always been proper practice in a criminal case.
We think this motion should have prevailed. How. Stat. § 9537, permits an amendment in the name of any county or place stated in the indictment, in the name or description of any person or body stated to be the owner of any property which is the subject of the offense charged, in the Christian or sur name of any person, in the name or description of any thing, in the name or description of any writing, in the ownership of any property described in the indictment, “and in all cases whenever the variance between the facts alleged in the indictment and those proved by the evidence are not material to the merits of the case.” Section 9539 provides that, when the offense charged has been created by any statute, the indictment shall, after verdict, be held sufficient to Avarraint the punishment prescribed by the statute, if if describes the offense in the words of the statute. The practice of the Court has been liberal in allowing amendments under section 9537 in the particulars especially authorized by statute. See People v. Hamilton, 76 Mich. 212; People v. McCullough, 81 Id. 25; People v. Waller, 70 Id. 237; People v. Mott, 34 Id. 81. It is very clear that the respondent might have been guilty of all the acts charged in the information, and yet not be brought within the terms of the statute defining the offense. Were the defect a mere omission of a word which -is necessarily implied from the test, it might be supplied by amendment, or the omission overlooked. Garvin v. State, 52 Miss. 207. But such is not the case here.
The judgment will be reversed and respondent discharged.
MoCrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J.