Andrews v. Bishop

87 Mass. 490

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1862
• Status: Published

Opinion

Bill in equity, in the nature of a bill of interpleader, filed oy the executor of the will of Thomas Wetmore, to obtain the on divers other days between that day and a subsequent day named. Commonwealth v. Elwell, 1 Gray, 463. This method was adopted in the present case; the last day named being the day of the preferment of the complaint. But the defendant contends that the addition of the words “ and is ” changes the character of the averment, and makes the day of the termination of the offence uncertain. It is a sufficient answer to this objection to say that, as the complaint contains a charge of the offence as committed between two days expressly named, and avers that the defendant was then an idle and disorderly person, the words “and is” maybe rejected as surplusage. They no more detract from or alter the effect of the previous exact and specific charge than if the words added were “ and intends to be.” Nothing could be given in evidence under them, for want of sufficient accuracy of description; but they leave the precision of what goes before unimpaired. Thus it has been held that where an offence, which could be properly laid with a continuando, was charged as having been committed on a day named, and “ on divers days since,” the latter part of the averment was not sufficiently precise; but that the evidence of the commission of the offence on the day named was admissible; Commonwealth v. Gardner, 7 Gray, 494.

2. The other exception taken was to the refusal of the court to give a more precise and accurate definition of what would constitute “ habitually misspending time by frequenting tippling shops,” &c. We think the instructions given were sufficient. If the defendant, being under a necessity to work for the support of himself or persons dependent upon him, being able and having opportunities to work, neglected all lawful business, and habitually frequented such places as those named in the complaint, he was certainly an idle and disorderly person within the meaning of the statute. If he “frequented” such places, it implied numerous visits; and if his misconduct was “ habitual,” the word itself, without further explanation, was sufficiently intelligible. Exceptions overruled.