People v. Onondaga General Sessions , 1 Wend. 296 ( 1828 )

By the Court,

Savage, Ch. J.

■ A’ judgment cannot be arrested for a variance between the facts charged in an indictment and the proof appearing on the trial. If such variance exists, it must be taken advantage of on the trial, A judgment can be arrested only for defects apparent upon the face of the record. (1 Chitty'’s Crim. Law, 539.) Besides, there was no variance, the defendant having subscribed a written complaint or information, and then swearing that the contents of the affidavit were true, did depose, swear and give information in writing, as charged in the indictment; but whether so or not, the judgment could not for this cause be arrested. An alternative mandamus is accordingly directed.