
    Commonwealth versus Putnam.
    After a divorce for the adultery of the husband, he does not, by marrying and co. habiting with a second wife, commit the crime of adultery 5 but he ought to oe indicted on the second section of St. 1784, c. 40$ and the second marriage, with all the other facts constituting his offence, should be set forth in the indictment.
    John Putnam was indicted at October term 1821, upon the statute of 1784, c. 40, for the crime of adultery. A special verdict was taken, in which the jury found, that on the 14th of June, 1798, the defendant was lawfully married within this Commonwealth to Anna Cox ; that he lived with her until September 1817, when, by a decree of this Court, the bonds of matrimony between them were dissolved for the cause of adultery committed by him ; and that she was still in full life. They further found, that on the 15th of December, 1819, the defendant was married in Connecticut, according to the forms of law in that State, to Dorcas Coller, who is named in the indictment, and that he had, from that time to the time of finding this bill, lived and cohabited with her in Sutton, in this county.
    
      Lincoln, for the defendant.
    If the facts found in the special verdict would warrant a conviction, yet the judgment ought to be arrested, because the indictment does not allege that the defendant was a married man. It is difficult to find English authorities expressly in point, because in England adultery is a subject of ecclesiastical jurisdiction ; but the argument is strong from analogy to indictments for other offences. 2 Hawk. P. C. c. 25, §§ 57, 60; Commonwealth v. Houghton, 8 Mass. Rep. 107. In Commonwealth v. Messenger, 4 Mass. Rep. 462, which was a prosecution for Sabbath-breaking, the offence was sufficiently determined by the reference to the statutes ; but in the statute upon which this indictment is founded, adultery is not described, and it is necessary to state all the facts which constitute the crime.
    But the facts in the special verdict will not warrant a conviction. By the second section of the statute, it >s provided, that if any person, &c. being iriarried, &c. shall marry any person, the former husband or wife being alive, &c. he shall be sentenced, &c. In the same section there is a proviso, that the act shall not extend to any person that shall be, at the time of such marriage, divorced, unless such person is the guilty cause of such divorce. As the statute does not say what shall constitute adultery, that offence cannot be committed under the circumstances mentioned in the verdict. Johnson defines adultery, “ The act of violating the bed of a married person.” The defendant has not done this. 'He has not violated any plighted faith to his former wife, because plighted faith should be mutual. The indictment might as well have been for polygamy as for adultery, for the proviso applies as much to one offence as to the other ; though in truth he could not be indicted for either, unless he were a married man at the time of the second marriage.
    By the laws of Connecticut, it was lawful for the defendant to marry ; but if not, he did not commit an offence for which he would be there liable to punishment as for adultery. Reeve’s Dom. Rel. 207; Swift’s Syst. Laws Conn. 227; Revis. Stat. Conn. 479, 480. The lex loci ought to prevail in regard to the validity of the marriage.
    In Milford v. Worcester, 7 Mass. Rep. 57, the causes which disqualify a party from marrying are enumerated, but no mention is made of a disqualification on account of being the guilty cause of a divorce.
    Davis, (Solicitor-General,) for the Commonwealth,
    admitted that there were no precedents of indictments for adultery in the English boohs ; and that it is usual here to allege in the indictment, that the party accused was married ; but in the present instance the party had been divorced. It might have been more correct to have stated all the facts, but it was not necessary. This indictment sets forth the offence with as much particularity as is usual. If adultery cannot be committed by any but a married person, or one hot freed from the obligations of a married person, still it may not be necessary to allege the fact of his being married in the indictment. [ Wilde J. If the offence would not have been adultery but for the proviso, is it not a new species of adultery, and should it not be set out conformably to the statute ?] The indictment is founded on the statute, and the offence is sufficiently determined by the reference to the statute, as in the case cited respecting Sabbath-breaking. The party was sufficiently apprized of what he was to defend himself against, the person with whom the adultery was committed being named.
    The laws of Connecticut are not applicable to this case. Adultery there is not the same thing as adultery here, where the crime was committed. The legislature intended that the proviso in the statute should extend to the first section, respecting adultery, though it applies more clearly to the second, respecting polygamy. If so, the defendant is liable to punishment, just as if he had never been divorced. If the first marriage was not dissolved quoad hoc, he is guilty of adultery, without the proviso ; if it was dissolved, still the proviso makes him guilty of the same offence. If there can be adultery under the proviso, the offence is committed by cohabitation in this Commonwealth with any woman, whether married or single. The defendant could be protected by the laws of Connecticut so long only as he remained there. Suppose that by the laws of that State a man might have, two wives at the same time ; he could not live with them both in this Commonwealth.
    No argument can be drawn from the omission in the case of Milford v. Worcester, in enumerating the causes which make a marriage unlawful.
    
      Lincoln, in reply.
    The citation from Hawkins is conclusive. If it was necessary to prove that the defendant was married, it was necessary to allege it in the indictment. A statute may subject a man to the penalties of adultery, but he cannot commit that crime unless he is married. It is no matter, therefore, what the offence is called, but all the facts should have been set forth, and the defendant would then have been liable to the penalties of the statute.
   Wilde J.

delivered the opinion of the Court. We give no opinion as to the validity of the marriage in the State of Connecticut. A similar question has been reserved for our consideration in another county ; and this case may be decided without touching that question. For, admitting the second marriage to be illegal and void, we are nevertheless of opinion, that this indictment cannot be supported. The facts found by the special verdict do not constitute the crime of adultery. By the divorce, the first marriage was dissolved, and, but for the second section of the act of 1784, c. 40, the second marriage would have been lawful by our laws, as well as by the laws of Connecticut. Notwithstanding the restraints imposed on the husband, he being the guilty cause of the divorce, the dissolution of the marriage contract was total, and not partial, as contended for by the Solicitor-General.

The defendant should have been indicted on the second section of the act referred to ; and the second marriage, with all the other facts, constituting the crime of polygamy, should have been set forth in the indictment, so that the defendant might have been prepared to answer and defend himself. On this indictment proof of an act of adultery committed before the divorce would have been admissible, for the time laid in the indictment is not material. A conviction of the crime of adultery could not be pleaded to an indictment for polygamy. We must distinguish between these offences. By the law of England, polygamy is made a capital felony, while adultery is treated only as a private injury, except so far as it is subjected to the feeble restraints of the spiritual court. This is certainly carrying matters to extremes. By our laws, the punishment of each offence is nearly the same, but there is a range for the discretion of the Court. It is sufficient, however, that the offences are distinct, however they may be punishable And, as the offence proved was not properly described m the indictment, the defendant must be discharged. 
      
       In the case of The Inhabitants of West Cambridge v. The Inhabitants of Lexington, determined at October term 1823, in Middlesex, post, 506.
     
      
       See Putnam v. Putnam, 8 Pick 433.
     