
    Commonwealth vs. Timothy Foley.
    On the trial of a complaint which alleges that on a day specified the defendant "was and is a common drunkard, having been at divers days and times since said day drunk and intoxicated by the voluntary and excessive use of intoxicating liquors,” the evidence m support of the charge must be confined to acts of the defendant done on a single day.
    Complaint, dated May 25,1868, that the defendant “ on the first day of January in the year of our Lord eighteen hundred and sixty-eight” “ was and is a common drunkard, having been at divers days and times since said first day of January in the year one thousand eight hundred and sixty-eight drank and intoxicated by the voluntary and excessive use of intoxicating liquors.”
    At the trial in the superior court, before Vose, J., on appeal from a trial justice, the judge ruled that evidence was competent in behalf of the Commonwealth of any and all instances of drunkenness of the defendant between said first day of January and the date of the complaint; and admitted such evidence against the objection of the defendant, who contended that the attorney for the Commonwealth should elect some one day to which to apply his evidence under the complaint in that form.
    The jury returned a verdict of guilty; and the defendant alleged exceptions. *
    C. Delano, for the defendant.
    
      C. Allen, Attorney General, for the Commonwealth.
   Chapman, C. J.

The complaint alleges in proper form that the defendant was a common drunkard on the 1st of January 1868. Commonwealth v. Boon, 2 Gray, 74. But it does not allege in proper form that he was a common drunkard at any other time; the words “having been at divers days and times since said first day of January in the year one thousand eight hundred ánd sixty-eight drunk and intoxicated by the voluntary and excessive use of intoxicating liquors,” not being sufficient. Commonwealth v. Gardner, 7 Gray, 494. The evidence should therefore have been confined to acts done on a single day. Commonwealth v. Elwell, 1 Gray, 463. Exceptions sustained.  