Commonwealth v. O'Connor

Ames, J.

1. The prosecuting officer, being called upon to elect upon which of several acts of adultery, described by the witness, he would go to the jury, made choice of one occurring at the place named on the evening of January 15. The time was more specifically identified by the circumstances attending the loss by the defendant of his ticket for admission to a fair. These circumstances made it certain, however, that the evening in question coidd not have been that of January 15, but of some date between February 7 and February 28. But the occasion, time and place could as well be identified by their connection with the time of some other event, as by the date in the calendar. The error in the assumed date would be wholly immaterial, provided the act charged were sufficiently identified by other circumstances, It is enough that it occurred on the night when the loss of the ticket occurred.

2. The rulings at the trial were correct and sufficiently favorable to the defendant, with one exception. The paternity of the child was not the subject of inquiry, and it is difficult to see how the fact or the date of its birth could be material to the question at issue. It had no tendency to show the defendant’s guilt on the occasion referred to in the indictment, and we cannot say that the evidence of the fact may not have had some effect "upon the minds of the jurors to his prejudice. On this point, therefore, the

Exceptions are sustained.