Commonwealth v. Keefe

1. The jury were correctly instructed that a sale on the 2d of June could not have been given in evidence on the trial of the indictment which charged the defendant with being a common seller on the 3d of that month and afterwards. Commonwealth v. Elwell, 1 Gray, 463. His acquittal of that charge, therefore, is no defence to this. The exceptions taken to the instructions given to the jury must be overruled.

*3352. The motion in arrest of judgment must also be overruled The complaint charges, in the proper and accustomed terms, that the sale was made “ contrary to the form of the statute in such case made and provided.” It was unnecessary, and would have been unprecedented, to set forth the date of the statute, or otherwise describe it. 2 Hale P. C. 172. Whether the alleged sale was a violation of St. 1855, c. 215, or of St. 1852, c. 322 was shown by proof of the day on which it was made ; and we need not now inquire whether proof of a sale before the St. of 1855 took effect would have supported this complaint. Commonwealth v. Hitchings, 5 Gray, 482.

3. But it is objected that the complaint is fatally defective, in not properly negativing the defendant’s legal right to make the sale with which it charges him ; the charge being, that he made the sale “ without being duly authorized and appointed thereto according to law.” The point of this objection is, that the complaint charges the defendant with selling without an appointment and also without any other authority; whereas either an appointment or any other authority is sufficient for his defence, and therefore the complaint sets forth no violation of the statute; as the defendant might have been innocent, by having authority, without having an appointment to sell.

It was decided in Commonwealth v. Lafontaine, 3 Gray, 479, that a. complaint on St. 1855, c. 215, as well as a complaint on St. 1852, c. 322, sufficiently negatives a defendant’s right to sell intoxicating liquors, by alleging that he sold them “ without having any legal appointment or authority therefor ; ” that authority to sell them may be derived either from an appointment by the selectmen of a town or by the mayor and aldermen of a city, as provided for by § 5 of St. 1855; or from county commissioners, as provided for by § 9 ; or from any other provisions of that statute, which render the sale of such liquors lawful. It is therefore clear that it is sufficient, in a complaint or indictment, to negative the defendant’s “ authority ” to sell, without also, in terms, negativing his “ appointment ” to sell. If he has no authority, he can have no appointment, for an appointment confers authority; and negativing an appointment, besides neg *336ativing an authority, is superfluous. And averments which are altogether superfluous and immaterial, and which are not descriptive of the identity of the offence charged, may be rejected as surplusage, either on trial or on a motion in arrest of judgment, if an indictment or complaint can be supported without those averments. 2 Gabbett Crim. Law, 200. 2 Russell on Crimes, (7th Amer. ed.) 786, 788. United States v. Howard, 3 Sumner, 15. Rex v. Howarth, 3 Stark. R. 26. The King v. Jones, 2 B. & Ad. 614. Commonwealth v. Baker, 10 Cush. 405. In the present case, the words “ and appointment,” in the complaint, may be .stricken out, and yet a sufficient charge against the defendant be left. On his trial, proof of any authority, howsoever derived, to make the sale with which he was charged, would have secured his acquittal.

In Commonwealth v. Murphy, 2 Gray, 510, the complaint charged the defendant with being a common seller of intoxicating liquors, “ not being duly appointed and authorized therefor.” The exceptions in that case were overruled, though there was precisely the same objection to'thatNcomplaint which is made to this. But as the point which has been made in this case was not there suggested by counsel nor considered by the court, we have not deemed the judgment in that case an authority against this defendant.

In Commonwealth v. Clapp, 5 Gray, 97, also, an allegation precisely like that adopted in the present case was held good, upon the authority of Commonwealth v. Lafontaine, 3 Gray, 479, without particularly remarking upon the difference between the two cases.

4. The complaint duly sets forth the time of the commission of the offence, in words, at length. The addition of the date at the end of the complaint was mere surplusage, and may therefore be rejected.

It is unnecessary to decide whether the mode of stating the date in this jurat would be sufficient in a complaint. See Commonwealth v. Clark, 4 Cush. 596; Commonwealth v. McLoon, 5 Gray, 91. The precision required in an indictment or complaint, which states the charge on which the defendant is to be *337tried, is not necessary in the jurat, which is a mere certificate oi the magistrate that the requisite oath has been taken. It is the uniform practice, in jurats, to state the year in figures ; and we believe this objection is now made for the first time. See Empey v. King, 13 M. & W. 519; Commonwealth v. Hutton, 5 Gray, 89 ; 3 Chit. Gen. Bract. 340.

It sufficiently appears on this complaint and jurat that the oath was made by the complainant. See Jackson v. Gumaer, 2 Cow. 560. Exceptions overruled.