State v. Thurstin

Howard, J. — Every material fact which serves to constitute the offence charged, should be alleged and set forth in the indictment, with precision and certainty as to time and place. A general averment that the accused had committed a particular crime named, without more specific allegations, would be insufficient. But after the time has been stated with certainty, it may be referred to, in respect to other facts alleged, by the terms then and there, without being repeated. 2 Hale, P. C. 178 ; Hawk. b. 2, c. 25, $ 78, and c. 23, <§, 88; 1 East, P. C. 346 ; 1 Chitty, C. L. 181-2. In this case, the fact of committing the crime of adultery, at a certain time and place, with Emeline Whitehouse, is first alleged against the accused; but to the fact that she was a married woman, and the wife of another, no time is averred, nor is there a reference, to the certain time before stated, by the words then and there, or any equivalent terms. Although we can readily suppose what was intended by the averments, yet, in criminal pleading, nothing can be taken by intendment. The allegation, “ being a married woman, and the lawful wife of Solomon H. Whitehouse,” has reference to the time of finding the indictment, and not to the time of the offence, in strictness of criminal law. Bridge's case, Cro. James, 639 ; 2 L’d Raym. 1467; 2 Chitty, C. L. 181. The indictment is, therefore, insufficient. Shepley, C. J., and Tenney, Wells and Appleton, J. J., concurred.