The first count of the complaint charges that “ Gridley B. Rowell and John A. Lawrence, copartners in trade, of said Boston,” had in their possession, with intent to sell it, *130milk not of good standard quality; the second count, upon which alone the defendant Rowell was convicted, charges that “the said Rowell and the said Lawrence, copartners as aforesaid,” had in their possession, with intent .to sell it, milk to which a foreign substance had been added.
The court refused to rule that it was necessary for the government to prove that Rowell and Lawrence were copartners, and the defendant Rowell excepted. The rule is that mere surplusage will not vitiate a complaint or indictment, and need not be established by proof.
The complaint must allege all the material elements which constitute the offence charged, and they must be proved. And if the complaint unnecessarily alleges anything which is descriptive of the identity of the offence, it must be proved as alleged. But any allegations not descriptive of the identity of the of-fence, which can be omitted without affecting the charge against the defendant, and without detriment to the complaint, may be treated as surplusage, and need not be proved. Commonwealth v. Pray, 13 Pick. 359. Commonwealth v. Cooley, 10 Pick. 37. Commonwealth v. Lewis, 1 Met. 151.
In the case at bar, the allegation that the defendants are co-partners in trade is entirely immaterial. If it be stricken out the complaint is good, and the same offence is charged. It is not one of the elements of the offence that they were partners, and the allegation may be rejected as surplusage and need not be proved. The rulings of the court upon this subject were correct.
The court also correctly ruled that the fact that the defendant Rowell was upon the wagon, under the circumstances stated in the testimony in the case, was competent evidence for the jury upon the issue whether he was in possession of the milk with intent to sell it. Exceptions overruled.