Commonwealth vs. Julius Smith.
An indictment which, taken in connection with the certificate indorsed thereon by the clerk at the time of its return into court, distinctly shows the dates of its presentment by the grand jury, and of the commission of the offence charged, is not invalidated by a defective description, in its caption, of the term of court at which it was found. '
Indictment for larceny in a building, with this caption: “ Commonwealth of Massachusetts. Middlesex, to wit. At the superior court begun and holden at Cambridge within and for the county of Middlesex, on the second Monday of February in the year of our Lord one thousand eight hundred and sixty-one; ” averring the commission of the crime on January 17, 1871; and indorsed as follows: “ Superior court, February term 1871, 5th day. Returned by the grand jury and filed in court. Jonathan J. Sawyer, Assistant Clerk.”
The defendant was arraigned thereon at February term 1871 of the superior court in Middlesex, and pleaded not guilty. On his trial at the same term, the jury found him guilty; and after the verdict, Reed, J., being doubtful whether sentence could be passed upon this indictment, reported that question, by the desire and consent of the defendant, for the determination of this court.
E. E. Heard, for the defendant.
J. O. Davis, Assistant Attorney General, (Q. Allen, Attorney General, with him,) for the Commonwealth.
Gray, J.
An indictment which, taken in connection with the certificate indorsed thereon by the clerk at the time of its return into court, distinctly shows the dates of its presentment by the grand jury, and of the commission of the offence charged, is not invalidated by a defective description, in its caption, of the term of court at which it was found. It has already been held that *487an omission, in the caption, of the date of holding the term is immaterial, when the date of its presentment and return is stated in the clerk’s indorsement, and the allegation in the indictment of the time of the commission of the offence is consistent therewith. Commonwealth v. Hines, 101 Mass. 33. We are of opinion that a like rule applies to this case, and that the statement, in the caption, of the year in which the court was held, may be rejected aa inconsistent with the dates stated in the clerk’s certificate and in the body of the indictment, and as manifestly erroneous.
Judgment on the verdict.