Commonwealth v. Whitman

118 Mass. 458, 1875 Mass. LEXIS 401

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1875
• Status: Published

Opinion

Colt, J.

The defendant was convicted upon the second and third counts in this complaint. Those counts sufficiently and properly allege the offence described in the first clause of the first section of the statute for the prevention of cruelty to animals. St. 1869. c. 344. The defendant is indeed described as having the charge or custody of the animal upon which the cruelty was inflicted, but under this clause of the statute this statement in the complaint is not material, nor is it by its form made essentially descriptive of the offence. The act of cruelty committed by any one, without regard to the ownership or custody of the animal, is made an offence. The last part of the section provides for the offence of unnecessary cruelty or unnecessary failure to provide food, drink or shelter, chargeable to the person having the charge or custody of any animal. That is not the offence here charged.

The words “having the charge or custody” of the animal named are to be regarded as surplusage, and do not render these counts indefinite. Nor was it necessary to allege the ownership or otherwise describe the animal, or to charge that the cruelty was unnecessary. Commonwealth v. McClellan, 101 Mass. 34. Commonwealth v. Lufkin, 7 Allen, 579.

Exceptions overruled.