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131 Mass. 577

Commonwealth v. Bakeman

Massachusetts Supreme Judicial Court

Decided November 23, 1881

Massachusetts Supreme Judicial Court · decided 1881-11-23

Indictment alleging that the defendants, Isaac Bakeman and Margaret Brooks, a married woman, on July 5, 1880, at Northampton, “ did commit the crime of adultery with each other, by then and there having carnal knowledge of the bodies of each other.” Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows: The government introduced evidence tending to show that on the day named in the indictment Bakeman was seen dragging Brooks…

Key passage — most relied on by later courts

““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 hy 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.””

quoted by 1 later decision, including State v. Wade

Relies on Morey v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1881-11-23

How this case has been cited

Cited by 16 later decisions — most recently February 1963

16 state decisions — followed in 11 states

50188118901900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Allen, J.

¶1The 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. *579It 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.

¶2Exceptions overruled.

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