Commonwealth v. O'Donnell

83 Mass. 593

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1861
• Status: Published

Opinion

Bigelow, C. J.

This complaint is clearly insufficient. It does not aver with certainty and precision that the name of the defendant was recorded, as a dealer in milk, in the books of the inspector. This was an essential and traversable fact, without proof of which the defendant could not be convicted of selling adulterated milk under Gen. Sts. c. 49, § 151. It was therefore necessary to allege it distinctly in the complaint.

The addition to the name of the complainant that he was an inspector of milk in the city of Boston, can be regarded only as descriptio personae. It is not so alleged that the plea of not guilty would put his official character in issue. As it stands, it was a descriptive statement entirely immaterial to the offence intended to be charged by the complaint. Nor can it be helped by the subsequent allegation that the name of the defendant was recorded in the books of Henry Faxon, because we cannot support a complaint or indictment by connecting together its different parts, so as to eke out an essential allegation argumentatively and by inference.

Demurrer sustained; judgment for the defendant.