Commonwealth v. Thompson

99 Mass. 444

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1868
• Status: Published

Opinion

Hoar, J.

No ground of exception being suggested to the evidence upon which the female defendant was convicted, there must be judgment upon the verdict against her. But the exception taken by the defendant Thompson seems to us well founded. The second count charged him with the crime of adultery by criminal intercourse with another man’s wife. The prosecution were therefore required to prove that the woman with whom the adulterous intercourse was had was married to another man. Her confession of this fact was evidence against herself; but her admissions were very clearly not evidence against another person. They were not upon oath, and the defendant Thompson had no opportunity to cross-examine her upon them.

The provisions of the statute relating to the evidence of marriage do not include this case. Gen. Sts. c. 106, § 22. The admission of the fact by the party against whom the process is instituted, general repute, cohabitation, or any other circumstantial or presumptive evidence from which the fact may be inferred, is made competent thereby. But the admission of another person, though charged with a crime in the same indictment, is not made competent, and it would be contrary to the elementary principles of justice to allow it. The circumstantial or presumptive evidence referred to must be evidence accompanying or preceding the fact to be proved, and not a mere subsequent declaration or admission of another than the defendant, which is only hearsay. The fact that the man and woman are charged with a joint offence, and in the same indictment, does not give to either the power to affect the other by a confession of any material part of the charge.

Exceptions of the defendant Thompson sustained.