The opinion
McNamee, J.
(concurring). I vote to reverse the judgment, dismiss the indictment, and discharge the defendant.
The indictment is found more than five years after the offense charged, and the prosecution not only did not question but established that the defendant was fiving openly within the jurisdiction and the county during the whole of that period, thus proving a complete defense. (People v. Brown, 238 App. Div. 155 .) If a proper motion had been made at any time during the trial the court would have directed a verdict of acquittal. The question was raised in arrest of judgment, and timely. Judgment may be arrested as specified in the Code of Criminal Procedure (§§ 331, 467, 481); but these sections do not provide the full measure of the power of the court to arrest judgment. Analogously, and in innumerable decisions it has been held that an indictment will be dismissed on grounds other than those specified in section 331 of the Code of Criminal Procedure, when the constitutional rights of a defendant are involved. In the exercise of its inherent power, the court may and should arrest judgment to avoid the results of clear mistake or to avoid a miscarriage of justice. An instance calling for the exercise of this power would arise if the trial of an indictment had proceeded to conviction on a case of mistaken identity of the defendant; another would be when it was admitted or became evident that the crime charged had not been in fact committed. In either event judgment would be arrested although the language of the Code does not provide for these or similar misfortunes. This court should do now what the trial court should have done, and should grant the motion in arrest of judgment. (People v. Goldfarb, 152 App. Div. 870 .)
Judgment of conviction reversed, indictment dismissed and appellant discharged.