Com. v. Fuller

• Decision Date: 24 May 1895
• Citation: 163 Mass. 499,40 N.E. 764
• Parties: COMMONWEALTH v. FULLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 499

40 N.E. 764

COMMONWEALTH v. FULLER.

Supreme Judicial Court of Massachusetts, Norfolk.

May 24, 1895

COUNSEL

Robert O. Harris, for the Commonwealth.

J.J Feely and A.C. Smith, for defendant.

OPINION

FIELD C.J.

This is an indictment containing but one count, charging that the defendant, "on the 1st day of July, in the year of our Lord one thousand eight hundred and ninety-four, at Medfield in the county of Norfolk, aforesaid, and on divers other days and times between that day and the 5th day of June, in the year of our Lord, 1894, did commit the crime of adultery with one Marion Brown, by then and there having carnal knowledge of the body of the said Marion Brown, the said Calvin Fuller being then and there a married man, and then and there having a lawful wife alive other than the said Marion Brown, and the said Calvin Fuller and Marion Brown not being then and there lawfully married to each other." The defendant duly filed a motion to quash the indictment, for these reasons "(1) Because the said indictment does not set forth any offense known to the law in any legal or sufficient manner (2) because the said indictment is bad for duplicity in charging more than one offense in the same count." We think that the indictment should be quashed for each of the reasons alleged. Adultery is not a continuing offense. Each act of adultery constitutes a separate offense. This is not a case where the continuance can be rejected as surplusage on the ground that the form of the allegation is imperfect and insufficient, because here the allegation is sufficient in form. If it is permissible to charge adultery with a continuando, then the commonwealth should have been limited in its proof of substantive acts to the time alleged, and the commonwealth ultimately relied upon acts which occurred more than a year before any time alleged. The real difficulty in the present case is that the defendant is charged in one count with the commission of many acts of adultery with the same person on different days and times. Com. v. Adams, 1 Gray, 481; State v. Temple, 38 Vt. 37. We deem it proper to say that the trial in this case seems to us to have been conducted irregularly, and without due regard to the rights of the defendant. The commonwealth was permitted to introduce evidence of acts of familiarity between the defendant and Marion Brown at many different times within six years before the finding of...