
    Commonwealth vs. Rodney Edmands.
    Middlesex.
    December 6, 1894.
    January 1, 1895.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathrop, JJ.
    
      Cruelty to Animals — Sufficient Averment in an Indictment — Rejection of Allegation as Surplusage.
    
    An averment in an indictment, after the statement of the formal parts and a period of time, that the defendant E. “ was the person having the charge and custody of a certain animal, to wit, a horse, and it was then and during the whole time aforesaid the duty of the said E. to provide the said horse with proper shelter and protection from the weather; and that the said E. did then and during the whole time aforesaid there unnecessarily and cruelly fail to provide the said horse with proper shelter and protection from the weather,” etc., clearly and sufficiently describes the offence in the language of Pub. Sts. c. 207, § 52; and as the insértion of the words “ and cruelly ” adds an immaterial allegation, which is not a part of the description of anything necessary to be mentioned in the complaint, the allegation may be rejected as surplusage.
   Knowlton, J.

The complaint, after the formal parts and a statement of a period of time, alleges that the defendant “ was the person having the charge and custody of a certain animal, to wit, a horse, and it was then and during the whole time aforesaid the duty of the said Rodney Edmands to provide the said horse with proper shelter and- protection from the weather; and that the said Rodney Edmands did then and during the whole time aforesaid there unnecessarily and cruelly fail to provide the said horse with proper shelter and protection from the weather,” etc. The only "exception is to the order overruling the motion to quash this count of the complaint.

1. The defendant is charged with an offence under the last part of the Pub. Sts. c. 207, § 52, and the offence is clearly and sufficiently described in the language of the statute. Commonwealth v. McClellan, 101 Mass. 34. Commonwealth v. Curry, 150 Mass. 509.

2. The insertion of the words “ and cruelly ” added an immaterial allegation which is not a part of the description of anything necessary to be mentioned in the complaint. This allegation need not be proved, and does not affect the validity of the complaint, but may be rejected as surplusage. Commonwealth v. Whitman, 118 Mass. 458. Exceptions overruled.

E. A. Upton, for the defendant.

6r. A. Sanderson, Assistant District Attorney, for the Commonwealth.  