The conviction may not stand because, although charged in the information with "wilfully" selling obscene material, appellant was tried and convicted upon evidence of an innocent and unknowing sale. An information must identify the charge so that acquittal would prevent a subsequent charge for the same offense ( People v. Farson, 244 N.Y. 413; People v. Grogan, 260 N.Y. 138; People v. Alexander, 306 N.Y. 656). It is not material that the statute does not require proof of willfulness. A criminal pleading must be sufficiently specific so that a defendant will not be required to go beyond the pleading to ascertain the nature of the charge ( People v. Hungerford, 129 Misc. 777, affd.
Consequently, proof of the said deviation does not sustain the charge set forth in the information. ( People v. Zambounis, 251 N.Y. 94; People v. Alexander, 306 N.Y. 656; People v. Chatlos, 283 App. Div. 623; People v. Glaser, 2 A.D.2d 352.) "The requirement that an indictment and an information must state the crime with which a defendant is charged, and the particular acts constituting that crime is more than a technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a rule of law." ( People v. Zambounis, supra, p. 97.
Moreover, the evidence adduced at the trial was insufficient to sustain a conviction under any of the sections mentioned. The requirement that an indictment and an information must state the crime with which a defendant is charged, and the particular acts constituting that crime is more than a technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a rule of law. ( People v. Zambounis, 251 N.Y. 94; see, also, People v. Chatlos, 283 App. Div. 623; People v. Alexander, 306 N.Y. 656.) Since the defendant was tried before a City Magistrate, sitting as a Court of Special Sessions (N.Y. City Crim. Cts. Act, § 130, subd. i; § 131), the complaint made by the police officer takes the place of the information and must meet the same requirements.
The Appellate Division, First Department, in People v. Glaser ( 2 A.D.2d 352, 353) wherein the charge was dismissed, defined the requirements of an information and said that it "must state the crime with which a defendant is charged, and the particular acts constituting that crime" and that such requirements are "more than a technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a rule of law". ( People v. Zambounis, 251 N.Y. 94; see, also, People v. Chatlos, 283 App. Div. 623; People v. Alexander, 306 N.Y. 656.)