Gorman v. Commonwealth

[542] Opinion, Me. Justice Claek : The indictment in this case contained two counts; one for fornication and bastardy, the other for adultery. During the trial the defendant called upon the commonwealth to elect upon which count a conviction was claimed, whereupon the commonwealth, not challenging the defendant’s right to make such a demand, moved the court to strike out the charge of fornication in the first count, and to amend the second count so as to include the charge of bastardy, which was done accordingly. The effect of this was to charge the defendant with adultery and bastardy, both of which offences had been charged in the indictment as returned by the grand jury. By the amendment nothing was added to, or altered in, the indictment, other than to withdraw the formal charge of fornication, (of which the defendant certainly could, not complain), and to unite the charge of bastardy with that of adultery. This simply affected the form of the indictment, altering no matter of substance. If the first count had been withdrawn wholly, and the defendant had been brought to trial on the charge of adultery, it would have been competent for the jury, in a certain condition of the proofs, to have found him guilty of fornication: Dinkey v. Commonwealth, 17 Pa. 126. Whether the charge be fornication and bastardy, adultery or seduction, the essential fact which constitutes the crime is fornication; these several offences exist by reason of the several peculiar aggravations, which in each case accompany the perpetration of the crime: Dinkey v. Commonwealth, supra. The charge of adultery, therefore, of which the defendant was found guilty, necessarily embraced the crime of fornication; and, as bastardy was also specifically charged and proven, in further aggravation of the offence, the just and appropriate penalties of the law were, we think, rightly imposed. The count for adultery, although not expressed in the words of the statute, was drawn according to the established precedents, recognized by the courts and the profession in this state for half a century and more, prior to the passage of the crimes act of 1860. That act merely gave us an authoritative definition of adultery, but it defined it according to the understanding which we had of that offence prior to its passage; the essential and characteristic features of the crime were precisely [543] the same before as since the act of 1860. And as there is no requirement that indictments must pursue the words of the statute, we cannot see why an indictment for adultery adjudged to be good under the criminal practice and procedure prior to the act of 1860, may not be considered sufficient now. The defendant comes here confessing that he is a married man, and frankly admitting that Ellen Colihan is a single woman, yet he contends that, as the name of his wife is not set forth in the indictment, it should have been averred that Ellen Colihan was not his lawful wife; in other words, that he is nob charged with the commission of any crime, for, as respects the indictment, Ellen Colihan may have been the defendant’s wife. His case rests upon a sheer technicality. The defect, if there is any, affects the form, not the substance of the charge. That the defendant is a married man, and had at the time a lawful wife alive, is expressly charged, and the fact is admitted; that Ellen Colihan was not his wife is necessarily implied, if it is not plainly expressed, in the words of the indictment. The charge is that the defendant “ did commit the crime of adultery with one Ellen Colihan,” and “ a female bastard child on the body of her the said Ellen Colihan did beget,” etc. The omission of the name of the defendant’s wife is but a formal matter, which should have been objected to before the jury was sworn, and not afterward: Davis v. Commonwealth, 4 Cent. R. 711; Rough v. Commonwealth, 78 Pa. 495. The defendant further assigns for error, that the indictment does not aver the birth of the child. The crime of fornication, or adultery, may be established although a child is not begotten; the birth of the child in consequence thereof is the proof of bastardy, and under our practice need not be averred in the indictment. Upon an examination of the whole case, we are of opinion that the judgment and sentence of the court must be sustained. The judgment is affirmed and the record remitted.