State v. Hutchinson , 36 Me. 261 ( 1853 )

Appleton, J. —

The indictment in this case alleges that “ Eleazer Hutchinson of Gardiner, in the county of Kennebec, on the first day of November, A. D. 1852, at Gardiner aforesaid, he, the said Eleazer Hutchinson, being then and there a married man and having a lawful wife alive, did commit the crime of adultery with Lucy Hersey, the wife of one Moses Hersey, by having carnal knowledge of the body of her, the said Lucy Hersey,” &c. It is impossible to misunderstand the meaning of the language used in this indictment. One does not readily perceive what more is required to convey to an ordinary understanding a clear and distinct idea of the nature and character of the offence charged. It would savor more of niceness than of wisdom to discharge the defendant upon distinctions such as are raised in this case. In State v. Tibbetts, 35 Maine, 205, there was no allegation that the defendant was a married man, having a lawful wife alive, at the time when the offence was alleged to have been committed. In Com. v. Reardon, 6 Cush. 79, Dewey, J., says, “ it is true, that if the party indicted is himself alleged to be a married man, the indictment will be good and sufficient in form, without any allegation that the person with whom he had sexual intercourse was a married woman. But it is no less true, that the indictment in such case may equally allege both the parties to the adultery to be married persons.” In the present case the allegation is full and distinct, that at the time set forth in the indictment the defendant was a married man. The offence is equally committed in such case, whether the woman is or is not married. Exceptions overruled.

Shepley, C. J., and Tenney, and Cutting, J. J., concurred.