Commonwealth v. Washburn

Gray, C. J. If the complaint had set forth the facts necessary to constitute an offence under the St. of 1867, c. 130, or under any other law of the Commonwealth, the mistake in stating the year of the passage of the statute might have been deemed to be either surplusage, which might be disregarded, or else a formal defect, which, not having been objected to before the trial [422] justice, could not be availed of in the Superior Court. 2 Hale P. C. 172. St. 1864, e. 250, § 2. Commonwealth v. Walton, 11 Allen, 238. But this complaint in no way avers or shows that the defendant has been guilty of any offence whatever, nor even what acts he has done or omitted to do, except by reference to the provisions of a statute passed in the year 1868, which is referred to, not merely as a law governing the case, (of which, if it existed, the court might be bound to take notice,) but as the only description in fact of the acts or omissions of the defendant. There being no statute of that year upon the subject, the complaint, if not bad in substance, as matter of law, is unsupported by the evidence, as matter of fact. 2 Hawk. c. 25, § 104. Gould PL c. 3, § 171. Commonwealth v. Hartwell, ante, 415. Exceptions sustained.