Commonwealth v. Tompson

Shaw, C. J.

The instruction of the court, to which exception was taken, appears to us to be correct, as we understand the direction. It was intended, we suppose, to say, that if the evidence was insufficient to establish the fact affirmatively, to the satisfaction of their minds, that the woman’s name was Esther Bradford, they could not so find that fact; and as there was no other evidence tending to prove what her name was, the jury would be warranted in finding, that if the act was done at all, it was with a woman, whose name, not being proved, was not known to them by any legal and sufficient evidence, and was therefore unknown.

The motion in arrest of judgment is founded on the objection, that there is no sufficient description, in the second count, of the person with whom the offence was committed, and that it is not sufficient to charge, that it was with a person whose name was unknown.

*553 We can perceive no ground for this objection. If the person was known, but the name unknown, we see not how it could be otherwise charged with truth. But further, the indictment states her to be a person whose name is unknown, but a person other than the defendant’s wife. When goods are alleged to be the property of persons unknown, and the averment and proof of that fact may affect the rights of the crown, or of third persons, it may be more material, as in the case cited from Holt; but there it was a question of proof, and not of pleading.

As adultery may be committed by a married man with a single woman, (Commonwealth v. Call, 21 Pick. 509 ,) it is not necessary to state the name of the woman, with any v-iew to showing that she was a married woman. It is then quite obvious, that the crime may be committed, and can be testified to by persons who know, and have the means ot knowing, that the woman is not the wife of the accused. The witnesses may be the neighbors of the accused, who know him well, and who know the wife well, and the criminal act may be committed under such circumstances, that they may see and know the countenance of the woman, and can testify that she was not the wife of the accused. This may occur at a tavern or other place, where the parties casually meet, and from whence they immediately separate, so that the witnesses cannot learn the name of the woman. It seems, that an indictment, in such case, alleging the facts which constitute the offence, with as much certainty as the case admits of, is sufficient.