
    Commonwealth vs. Charles P. Brigham.
    An objection that an averment in a complaint on the Gen. Sts. c. 165, § 41, that the defendant “did wilfully and cruelly torture a certain horse,” does not sufficiently describe the offence, is an objection to a formal defect within the meaning of the St. of 1864, c. 250, § 2, and cannot be taken for the first time on an appeal from the judgment of the court to which the complaint was made.
    Complaint to the municipal court of the city of Boston, on the Gen. Sts. c. 165, § 41, charging that the defendant “ did wilfully and cruelly torture a certain horse.” The defendant was convicted, and appealed to the superior court, where, before a jury was empanelled, he moved to quash the complaint, on the ground that it did not sufficiently allege and describe any offence, but Pitman, J., overruled the motion. The defendant was then tried and found guilty,, and alleged exceptions.
    
      H. St. J. Creen F. W. Kittredge, for the defendant.
    
      C. Allen, Attorney General, for the Commonwealth.
   Gray, J.

This complaint avers, in tie very words of the statute upon which it is founded, that the defendant did wilfully and cruelly torture a certain horse. The only objection argued is that it does not specify the manner and means of the torture. But this is a mere matter of technical form. When the act charged is shown by the accusation to be a crime, our statutes require objections for merely formal defects to be taken before submitting the whole case to a decision upon the merits in the court having original jurisdiction of the case; and it is within the constitutional authority of the legislature to prescribe the stage of the proceedings at which objections of this kind must be taken. The motion to quash the complaint for this cause, not having been made before the court by which the complaint was heard in the first instance, was not open to the defendant in the superior court. St. 1864, c. 250, § 2. Commonwealth v. Walton, 11 Allen, 238. Commonwealth v. Norton, 13 Allen, 550. Commonwealth v. Emmons, 98 Mass. 6. The question whether this objection, if seasonably taken, would have availed the defendant, is not therefore before us. See Commonwealth v. Sowle, 9 Gray, 304; Commonwealth v. McClellan, 101 Mass. 34 ; State v. Pugh, 15 Missouri, 509. Exceptions overruled.  