
    John K. Booth vs. The Commonwealth.
    Where a defendant is found guilty, generally, on an indictment which charges him with adultery, on three different days, with a woman of one name, and on a different day, with a woman of another name, and he is sentenced to a greater pun ishment than i= warranted by law for a single act of adultery; the court cannot on a writ of error, presume that a single offence only was charged in the indictment
    Writ of error to reverse a judgment of the court of common pleas in the county of Bristol, at the June term, 1841. The plaintiff in error was found guilty, at that term, on an indictment containing four counts, and charging him with adultery, on three different days, with a woman named P., and on another day, with a woman named W., and he was sentenced to one day’s solitary imprisonment, and confinement afterwards at hard labor, for the term of three years, in the state prison. The assignment of error was, “ that said judgment is excessive and illegal in the matter of the one day’s solitary imprisonment.”
    
      G. Bemis, for the plaintiff in error.
    
      Austin, (Attorney General,) for the Commonwealth.
   Shaw, C. J.

It is contended, that this judgment is to be deemed erroneous, because the whole indictment is to be considered as charging one offence of adultery, which subjected the convict to one punishment only, which, by Rev. Sts. c. 130, § 1, cannot exceed three years’ imprisonment in the state prison ; or, that the court are to presume that the grand jury intended to charge one fact of adultery, and that different days were .laid, to meet the proof as it might come out, and that the same woman may have been intended, designating her by different names, to meet the proof. But, for the reasons stated in Carlton v. Commonwealth, (ante, p. 534,) we are of opinion that we cannot presume them to be charges of one offence only, but to be, what they purport to be, charges of several distinct offences ; and being of the same nature, and subjecting the party to the same species of punishment, they might properly be included in one indictment. Under this aspect, it is very clear that the punisn ment awarded did not exceed that prescribed by law, and there fore that the judgment was not erroneous.

Judgment affirmed  