
    Commonwealth vs. John Flannigan.
    Hampden.
    Sept. 23. — 29, 1884.
    C. Allen & Colbubn, JJ., absent.
    A complaint, alleging that the defendant “ did cruelly overdrive a certain horse,” is sufficient, under the Pub. Sts. c. 207, § 52.
    A formal defect in a complaint cannot be availed of for the first time in the Superior Court on appeal.
    Complaint to the Police Court of Holyoke, alleging that the defendant, on September 16,1883, at Holyoke, “ did cruelly overdrive a certain horse, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”
    In the Superior Court, before the jury were empanelled, the defendant filed a motion to dismiss the complaint, for the following reasons: “ 1. Because said complaint charges no crime or offence. 2. Because the only count of said complaint charges two separate and distinct offences. 3. Because said complaint is uncertain and indefinite in the allegation of the offence. 4. Because, if said complaint is brought under the Pub. Sts. c. 207, § 53, it does not allege that the defendant was either the owner, possessor, or person having the charge or custody of said horse. 5. Because there is no allegation in said complaint that the defendant overdrove said horse knowingly or intentionally.” Knowlton, J., overruled the motion, and ruled that the complaint was sufficient.
    The jury returned a verdict of guilty; and the defendant alleged exceptions.
    
      W. H. Brooks, for the defendant.
    
      E. J. Sherman, Attorney General, for the Commonwealth.
   By the Count.

The complaint in this case is a sufficient complaint for overdriving a horse, under the Pub. Sts. c. 207, § 52. The unnecessary use of the word “ cruelly ” is not material. It does not change the essential description of the offence charged, and is at most a formal defect, which could not be availed of for the first time in the Superior Court on appeal. Pub. Sts. c. 214, § 25. Exceptions overruled. 
      
      
         Section 52 provides that “whoever overdrives .... an animal” shall be punished, &c. Section 53 provides that “ every owner, possessor, or person having the charge or custody of an animal, who cruelly drives or works it when unfit for labor,” shall be punished, &c.
     