Commonwealth v. Cobb
80 Mass. 57
Mass.
1859
Check Treatment
Hoar, J.

These exceptions seem to us rather metaphysical than practical. How the crime of adultery could be committed, except “ on some particular day or occasion,” it is not easy to perceive. "We know no rule of law which requires the jury to designate in their verdict the time at which the offence was committed. A day must be alleged in the indictment, and a day was alleged in this indictment; but it is not so far material, that it will be a variance if the proof does not show that the crime was committed on the very day alleged. If the proof *59shows that the act was committed on any day within the period fixed by the statute of limitations, it is sufficient. Of course the jury must be satisfied that there had been a specific act of adultery committed by the defendants, in order to convict them ; and so they were instructed by the court. But why one act, proved to the satisfaction of the jury, beyond a reasonable doubt, should any the less authorize a conviction, because the jury might also be satisfied from the evidence that the offence had been repeated, we do not understand.

The point argued by the defendants’ counsel is, that they could not be jointly convicted of a single act of adultery, upon the admission by one of an act of adultery committed at one time, and the admission by the other of a different act of adultery committed at another time. This is unquestionably correct ; but the court were not requested to give any instructions upon this point; nor are the instructions reported in any degree conflicting with it. No such point appears to have been taken at the trial; and whether the question must necessarily have arisen upon the whole evidence, is not clearly shown.

Exceptions overruled.