
    Commonwealth vs. Aaron G. Lord.
    Worcester.
    October 1, 1888.
    October 13, 1888.
    Present: Morton, C. J., Devens, W. Allen, C. Allen, & Knowlton, JJ.
    
      Vagrant — Complaint — Time — Surplusage.
    
    A complaint for vagrancy, under the Pub. Sts. c. 207, § 42, is supported by proof that the offence was committed during a substantial part of the time covered by the complaint; and an averment that such offence was committed “ continually ” may be rejected as surplusage.
    Complaint, under the Pub. Sts. c. 207, § 42, to the Central District Court of Worcester, alleging that the defendant, on January 1, 1886, “ and from thence continually to the sixth day of June in the year eighteen hundred and eighty-seven, was an idle person, then and there having no visible means of support, and living without lawful employment.”
    At the trial in the Superior Court, on appeal, before Brigham, C. J., the defendant asked the judge to instruct the jury:
    
      “1. The government must prove either that the defendant was guilty of the charge laid in the complaint on January 1, 1886; or that ‘ continually,’ that is, all the time, from that date to June 6, 1887, he was guilty of the charge laid in the complaint; and if the jury are satisfied that the defendant has not been proved guilty of the charge laid in the complaint on January 1, 1886, and has not been proved guilty of the charge laid in the complaint all the time from January 1, 1886, to June 7, 1887, it is their duty to acquit the defendant. 2. The jury have no right to reject the word ‘ continually ’ as surplusage or unnecessary.”
    The judge refused so to instruct, and instructed the jury that it would be sufficient to convict the defendant if the jury were satisfied that the defendant was guilty of the charge laid in the complaint some substantial portion of the time mentioned in the complaint; that it would not be necessary to prove that the defendant was guilty of the charge of vagrancy on January 1, 1886; and that it would not be necessary to prove that he was guilty of vagrancy continually, that is, all the time, from January 1, 1886, to June 6, 1887.
    The jury returned a verdict of guilty; and the defendant alleged exceptions.
    
      J. E. Sullivan, for the defendant.
    ’ A. J. Waterman, Attorney General, for the Commonwealth.
   By the Court.

It was sufficient to prove that the offence charged was committed during a substantial part of the time named in the complaint. Commonwealth v. Kerrissey, 141 Mass. 110. The use of the word “ continually ” was unnecessary. It does not change or affect the identity of the offence charged, and it may be disregarded as surplusage.

Exceptions overruled.  