Commonwealth v. Bakeman

131 Mass. 577, 1881 Mass. LEXIS 328

Opinion

Allen, J.

The indictment charges a joint act by both defendants, constituting a crime in each. It is the common case of different defendants jointly indicted for a crime which may be committed by one alone. The charge is several as well as joint, and one defendant can be convicted upon proof of a several act by him. Such indictments must be construed as if they contained the allegations that the acts constituting the offence, and charged to have been done by the defendants jointly, were also done by each defendant separately. In accordance with that construction, the indictment in this case includes the allegations- that each of, the defendants committed the crime by each having carnal knowledge of the body of the other. Commonwealth v. Elwell, 2 Met. 190. Commonwealth v. Griffin, 3 Cush. 523. Commonwealth v. Slate, 11 Gray, 60. Commonwealth v. Cook, 12 Allen, 542. When a crime charged is one which consists in the concurrent act of two or more, such as conspiracy, such joint action must be alleged and proved. But adultery is not such a crime. One person may be alone guilty of it. The act of sexual intercourse by a married man with an unmarried woman, or by an unmarried man with a married woman, is adultery in the man without regard to the guilt of the woman. It is an act committed by him, between him and the woman, although she is not the criminal or conscious participant. And it is no less adultery that it is also rape. The offences are different in the nature of the wrong done, and in the facts which constitute them. Neither includes the other; and a defendant may be convicted of either without allegation or proof of some fact essential to the other. Carnal knowledge of a woman is the fact common to both: if it is with force and against her will the crime is rape, and the fact that she is married is immaterial ; if she is a married woman the crime is adultery, and the fact that it is by force is immaterial. That a man cannot commit rape upon a married woman without also committing adultery, only shows that he commits both crimes by one act which includes all the elements of both. Morey v. Commonwealth, 108 Mass. 433. State v. Sanders, 30 Iowa, 582.

Exceptions overruled.