Commonwealth v. Burke

Metcalf, J.

As both counts in this complaint conclude “ against the form of the statute in such case made and provided,” and not against the form of “ the statute aforesaid,” we incline to the opinion that the previous setting forth of the title of St. 1855, c. 215, if correct, might be rejected as surplusage, and judgment be well entered on the verdict. See 2 Salk. (Evans’s ed.) 609, note; 1 Chit. Crim. Law, 279. We dq not, however, decide the case on that ground. For we are of opinion that if the rule of law, that a variance, between the recited and the true title of a statute is fatal to an indictment or complaint, (1 Stark. Crim. Pl. (2d ed.) 215, 216; 1 Gabbett Crim. Law, 47,48,) must be applied to the present case, yet that there is here no such variance. The only difference between the recited and the true title of St. 1855, c. 215, is in the spelling of a single word. The complaint recites, “ an act concerning the manufacture and sale of spiritous and intoxicating liquors.” The true title is, “ an act concerning the manufacture and sale of spirituous and intoxicating liquors.” In Worcester’s Dictionary, it is said that “spiritous” and “spirituous” have the same meaning. In Webster’s, it is said that “ spirituous ” might as well be written “ spiritous.” And so it is written throughout our revised statutes. The variance, therefore, on which the defendant relies, is immaterial. It does not alter the sense. See People v. Walbridge, 6 Cow. 572.

The judge who reported this case supposed that the word “ spritous ” was in the recited title of the statute. In this he was misinformed. Judgment on the verdict.