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Morey v. Commonwealth, 108 Mass. 433 (Mass. 1871). Cases Citing This Book View Copy Cite
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A single act may violate two different statutes if each statute requires proof of an additional fact that the other does not.

A defendant is charged with two distinct offenses arising from the same act of unlawful intercourse: lewd and lascivious cohabitation and adultery. The court considers whether a conviction under one indictment bars prosecution under the other. The court holds that a single act may constitute offenses against two different statutes if each statute requires proof of an additional fact that the other does not. Because the cohabitation indictment requires proof of continuous living together and the adultery indictment requires proof of marriage, a conviction under one does not bar a conviction under the other.

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cited 27× by 24 distinct cases, 1920–2017 · 19 courts↓ Fading · …a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. at p. 434 ✓ Topic ↗
cited 8× by 7 distinct cases, last quoted 1987 · 5 courts↓ Fading · …each statute requires proof of an additional fact which the other does not, at p. 434 ✓ Topic ↗
cited 6× by 6 distinct cases, last quoted 1993 · 4 courts↓ Fading · …a single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. at p. 434 ✓ Topic ↗
549 citation events (163 in the last 25 years) across 99 distinct courts.
Strongest positive: State Of Washington, V. Chad Thomas Clark (washctapp, 2025-12-08)
Treatment trajectory · 1901 → 2026 · click a year to view as-of
1901 1963 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) State Of Washington, V. Chad Thomas Clark
Wash. Ct. App. · 2025 · confidence medium
Ray, slip op. at 26. “‘[I]f each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’” Blockburger, 284 U.S. at 304 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) Commonwealth v. Cheri M. Dobson.
Mass. App. Ct. · 2025 · confidence medium
"The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) . . . , and its progeny, is that 'a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.'" Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
discussed Cited as authority (rule) Commonwealth v. David K. Njuguna
Mass. · 2025 · confidence medium
Under Morey v. Commonwealth, 108 Mass. 433, 434 (1871), Massachusetts follows the traditional rule that "a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not." Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
discussed Cited as authority (rule) Shanteria Montgomery v. State of Arkansas
Ark. Ct. App. · 2024 · confidence medium
“A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Blockburger, 284 U.S. at 299 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) Shannon Thepharath v. State of Arkansas
Ark. Ct. App. · 2024 · confidence medium
“A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Blockburger v. United States, 284 U.S. 299, 304 (1932) (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) United States v. Bennett
D.D.C. · 2023 · confidence medium
Put differently, a “single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) State v. Michael K. Fermanich
Wis. · 2023 · confidence medium
As we have stated in the area of double jeopardy: 7 No. 2021AP462-CR.akz [T]his court was one of many state courts signifying the distinction between acts and offenses by stating: "'The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.'" State v. Brooks, 215 Wis. 134, 140 , 254 N.W. 374 (1934) (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) Commonwealth v. Jason Labbe.
Mass. App. Ct. · 2023 · confidence medium
"The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (Morey), and its progeny, is that 'a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.'" Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
discussed Cited as authority (rule) Commonwealth v. Corey Hutchins.
Mass. App. Ct. · 2023 · confidence medium
"The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) [], 4 and its progeny, is that 'a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.'" Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
discussed Cited as authority (rule) COMMONWEALTH v. MAURICE JOHNSON.
Mass. App. Ct. · 2023 · confidence medium
The defendant argues that under the same elements test of Morey v. Commonwealth, 108 Mass. 433, 434 (1871), later adopted by the United States Supreme Court, see Blockburger v. United States, 284 U.S. 299, 304 (1932), because all of the elements present in § 10 (a) are included in § 18B, his conviction for the former must be vacated as duplicative of his conviction for the latter.
discussed Cited as authority (rule) United States v. Price
D.D.C. · 2022 · confidence medium
“A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (citing Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) United States v. Price
D.D.C. · 2022 · confidence medium
“A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (citing Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) Brandon Servais v. Commonwealth of Virginia
Va. Ct. App. · 2020 · confidence medium
Under Blockburger, “if each statute requires proof of an additional fact which the other does not,” it is not a lesser-included offense, and thus, “an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. at 304 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
cited Cited as authority (rule) State of Louisiana v. Skylar Frank
La. · 2017 · confidence medium
Morey v. Commonwealth, 108 Mass. 433, 435 (Mass. 1871).6 The U.S. Supreme 5 Similarly, La.
discussed Cited as authority (rule) State Of Washington v. Edward Wilkins
Wash. Ct. App. · 2017 · confidence medium
Under the Washington rule, double jeopardy attaches only if the offenses are identical in both law and fact, which is demonstrated when “‘the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.’” State v. Reiff, 14 Wash. 664, 667 , 45 P. 318 (1896) (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) United States v. Sorensen
10th Cir. · 2015 · confidence medium
The Supreme Court “has long recognized that when an act violates more than one criminal statute, the Government may proseeute[ ] under either....” United States v. Batchelder, 442 U.S. 114, 123-24 , 99 S.Ct. 2198 , 60 L.Ed.2d 755 (1979); see also Ball v. United States, 470 U.S. 856, 859 , 105 S.Ct. 1668 , 84 L.Ed.2d 740 (1985) (recognizing “the Government’s broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case”); United States v. Beacon Brass Co., 344 U.S. 43, 45 , 73 S.Ct. 77 , 97 L.Ed. 61 (1952) (“At least …
cited Cited as authority (rule) Commonwealth v. Cruz
Mass. App. Ct. · 2015 · confidence medium
We are required, however, to apply the elements-based approach, first articulated in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), to claims of purported duplicative convictions.
cited Cited as authority (rule) State Of Washington v. Andrea Lynn Lister
Wash. Ct. App. · 2015 · confidence medium
Commonwealth, 108 Mass. 433, 434 (1871)). 10 No. 71818-5-1/11 The State here charged Lister with one count of violation of a protective order and one count of felony stalking.
discussed Cited as authority (rule) Commonwealth v. The Ngoc Tran
Mass. · 2015 · confidence medium
In Vick, 454 Mass. at 431 , we explained, “[an] elements-based approach remains the standard for determining whether multiple convictions stemming from one criminal transaction are duplicative.” See Morey v. Commonwealth, 108 Mass. 433, 434-436 (1871).
discussed Cited as authority (rule) Commonwealth v. Kelly (2×)
Mass. · 2015 · confidence medium
"Under our long-standing rule derived from Morey v. Commonwealth, 108 Mass. 433, 434 (1871), a lesser included offense is one whose elements are a subset of the elements of the charged offense." Commonwealth v. Porro, 458 Mass. 526 , 531 37 (2010).
examined Cited as authority (rule) State v. Garza (3×) also: Cited "see"
S.D. · 2014 · confidence medium
If such.proof is required, then the single act may be an offense against two statutes and “an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (Mass.1871)). [¶ 11.] The analysis is different, however, in the context of multiple punishments for the same criminal act.
cited Cited as authority (rule) Commonwealth v. Selavka
Mass. · 2014 · confidence medium
See Commonwealth v. Suero, 465 Mass. 215, 223 (2013); Morey v. Commonwealth, 108 Mass. 433, 434 (1871).
discussed Cited as authority (rule) Commonwealth v. Torres
Mass. · 2014 · confidence medium
L. c. 265, § 13A (b) (iii), are duplicative because the elements of violating an abuse prevention order are encompassed by the elements of assault and battery on a person protected by an abuse prevention order and, therefore, his convictions violate his right to be free from double jeopardy under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. 4 We disagree. “[A] defendant may properly be punished for two crimes arising out of the same course of conduct.” Commonwealth v. Valliere, 437 Mass. 366, 371 (2002), quoting Morey v. Com…
discussed Cited as authority (rule) State Of Washington v. Ravis Laquien Dunn
Wash. Ct. App. · 2014 · confidence medium
Calle. 125 Wn.2d at 777 ; Blockburger. 284 U.S. at 304 (establishing "same evidence" or "same elements" test); State v. Reiff. 14 Wash. 664, 667 , 45 P. 318 (1896) (double jeopardy violated when "'the evidence required to support a conviction [of one crime] would have been sufficient to warrant a conviction upon the other'") (quoting Morev v. Commonwealth. 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) Commonwealth v. Labadie
Mass. · 2014 · confidence medium
“Under our long-standing rule derived from Morey v. Commonwealth, 108 Mass. 433, 434 (1871), a lesser included offense is one whose elements are a subset of the elements of the charged offense.” Commonwealth v. Porro, 458 Mass. 526, 531 (2010).
discussed Cited as authority (rule) Commonwealth v. Rose
Mass. App. Ct. · 2013 · confidence medium
“The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) {Morey), and its progeny, is that ‘a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’ ” Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
discussed Cited as authority (rule) Commonwealth v. Rivas (2×)
Mass. · 2013 · confidence medium
Where the Legislature has not stated its intent to impose multiple punishments for the same criminal conduct, we utilize the elements test set forth in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), to determine whether the Legislature intended to punish the same conduct under multiple statutory offenses. 5 Commonwealth v. Jones, 382 Mass. 387, 393 (1981).
discussed Cited as authority (rule) State v. Ralph
Wash. Ct. App. · 2013 · confidence medium
Thus, the second degree robbery and the second degree TMVWP, as charged and proved here, are the same in fact: The robbery was based on the single act of Ralph’s taking a motor vehicle from a single victim by force; and proof of the theft element of the robbery also proved the TMVWP charge. ¶23 As our Supreme Court has long acknowledged, the constitutional prohibition against double jeopardy is violated when “ The evidence required to support a conviction [of one crime] would have been sufficient to warrant a conviction upon the other.’ ” Freeman, 153 Wn.2d at 772 (citing State v. Rei…
discussed Cited as authority (rule) Gil v. State
Fla. · 2013 · confidence medium
The test articulated in Blockburger , sometimes referred to as the "same elements” test, provides "[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” 284 U.S. at 304 , 52 S.Ct. 180 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)). .
discussed Cited as authority (rule) Commonwealth v. Suero
Mass. · 2013 · confidence medium
“Under our long-standing rule derived from Morey v. Commonwealth, 108 Mass. 433, 434 (1871), a lesser included offense is one whose elements are a subset of the elements of the charged offense.” Commonwealth v. Porro, 458 Mass. 526, 531 (2010). “[W]hether two offenses are ‘so closely related in fact as to constitute in substance but a single crime,’ . . . becomes pertinent in a single criminal proceeding where one crime is a lesser included offense of the other.” See Commonwealth v. Vick, 454 Mass. 418, 435 (2009), quoting Commonwealth v. St.
discussed Cited as authority (rule) Commonwealth v. Negron
Mass. · 2012 · confidence medium
In Commonwealth v. Vick, 454 Mass. 418, 431 (2009), we reiterated our traditional rule, embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), for determining whether two charges are duplicative: “ ‘[A] defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’ Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). . . .
discussed Cited as authority (rule) Commonwealth v. Anderson
Mass. · 2012 · confidence medium
The defendant argues that his convictions of armed robbery and assault by means of a dangerous weapon are duplicative. 17 In Commonwealth v. Vick, 454 Mass. 418, 431 (2009), we declared: “The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (Morey), and its progeny, is that ‘a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’ Commonwealth v. Valiere, 437 Mass. 366, 371 (2002). . . .
cited Cited as authority (rule) Commonwealth v. Botev
Mass. App. Ct. · 2011 · confidence medium
As to counts 3 and 4, the lesser included offenses placed on file, see Commonwealth v. Chappee, 397 Mass. 508, 523-524 (1986), citing Morey v. Commonwealth, 108 Mass. 433, 434-435 (1871).
cited Cited as authority (rule) Commonwealth v. Porro
Mass. · 2010 · confidence medium
Under our long-standing rule derived from Morey v. Commonwealth, 108 Mass. 433, 434 (1871), a lesser included offense is one whose elements are a subset of the elements of the charged offense.
discussed Cited as authority (rule) State v. Gatlin
Wash. Ct. App. · 2010 · confidence medium
Under the Washington rule, double jeopardy attaches only if the offenses are identical in both law and fact, which is demonstrated when “ ‘the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.’ ” State v. Reiff, 14 Wash. 664, 667 , 45 P. 318 (1896) (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) State v. Gatlin
Wash. Ct. App. · 2010 · confidence medium
Under the Washington rule, double jeopardy attaches only if the offenses are identical in both law and fact, which is demonstrated when "`the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.'" State v. Reiff, 14 Wash. 664, 667 , 45 P. 318 (1896) (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) Commonwealth v. Pearson
Mass. App. Ct. · 2010 · confidence medium
“The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) . . . , and its progeny, is that ‘a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’ ” Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
cited Cited as authority (rule) State v. Williams
Wash. Ct. App. · 2010 · confidence medium
Ed. 306 (1932) (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)); State v. Vladovic, 99 Wn.2d 413, 423 , 662 P.2d 853 (1983). ¶17 Our review of this constitutional challenge is de novo.
discussed Cited as authority (rule) Commonwealth v. Flanagan
Mass. App. Ct. · 2010 · confidence medium
“The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), . . . and its progeny, is that ‘a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’ As long as each offense requires proof of an additional element that the other does not, ‘neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].’ ” Commonwealth v. Vick…
discussed Cited as authority (rule) Commonwealth v. Kulesa
Mass. · 2009 · confidence medium
We add that criminal harassment and violation of a 209A order are not the “same offence,” and satisfy the traditional rule in Massachusetts as set forth in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), and its progeny, that “a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.” Commonwealth v. Cabrera, 449 Mass. 825, 827 (2007), quoting Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
discussed Cited as authority (rule) Commonwealth v. Putnam
Mass. App. Ct. · 2009 · confidence medium
The traditional rule, embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), and employed by Massachusetts courts on the issues of double jeopardy and duplicative offenses, provides that “a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.” Commonwealth v. Keohane, 444 Mass. 563, 574 (2005), quoting from Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 385-386 (1998). 7 The vitality of that elements-based rule was affirmed in Commonwealth v. Vick, 454 Mass. 418 (20…
discussed Cited as authority (rule) United States v. Gomez
S.D.N.Y. · 2009 · confidence medium
Id. (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)). “ ‘[I]f each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ ” Id.
discussed Cited as authority (rule) Commonwealth v. Vick (2×) also: Cited "see"
Mass. · 2009 · confidence medium
The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (Morey), and its progeny, is that “a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.” Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
discussed Cited as authority (rule) Commonwealth v. Mazzantini
Mass. App. Ct. · 2009 · confidence medium
Although the defendant concedes that the two offenses are not duplicative under the elements-based test of Morey v. Commonwealth, 108 Mass. 433, 434 (1871), he nevertheless claims that the Legislature did not intend that he be punished for both offenses.
cited Cited as authority (rule) State v. Fuentes
Wash. Ct. App. · 2009 · confidence medium
Id. at 817. 29 Id. (quoting Blockburger, 284 U.S. at 304 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871))).
cited Cited as authority (rule) Commonwealth v. Boyd
Mass. App. Ct. · 2008 · confidence medium
The first inquires whether “each crime requires proof of an element that the other does not.” Morey v. Commonwealth, 108 Mass. 433, 434 (1871).
cited Cited as authority (rule) Commonwealth v. Wilcox
Mass. App. Ct. · 2008 · confidence medium
Second, the offenses of kidnapping and aggravated rape are not duplicative under the elements-based test of Morey v. Commonwealth, 108 Mass. 433, 434 (1871).
discussed Cited as authority (rule) State v. Walker
Wash. Ct. App. · 2008 · confidence medium
And under the Washington rule for “same evidence,” double jeopardy attaches only if the offenses are identical in both law and fact, which is demonstrated when “ ‘the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.’ ” Reiff , 14 Wash, at 667 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
discussed Cited as authority (rule) Boyd v. State
Miss. · 2008 · confidence medium
Conversely, where each offense includes an element not included in the other, "an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Blockburger, 284 U.S. 299, 304 , 52 S.Ct. 180 , quoting Morey v. Commonwealth, 108 Mass. 433, 434 (Mass.1871). ¶ 17.
discussed Cited as authority (rule) Commonwealth v. Cabrera
Mass. · 2007 · confidence medium
The standard in Massachusetts for determining whether multiple convictions stemming from a single event are duplicative was first articulated over a century ago, in Morey v. Commonwealth, 108 Mass. 433, 434 (1871).
Retrieving the full opinion text from the archive…
Maurice Morey
v.
The Commonwealth
Massachusetts Supreme Judicial Court.
Nov 15, 1871.
108 Mass. 433
S'. L. Hazelton, for the plaintiff in error., O. Allen, Attorney General, for the Commonwealth.
Gbay.
Cited by 476 opinions  |  Published
Gbay, J.

A conviction or acquittal upon one indictment is na bar to a subsequent conviction and sentence upon another, unlets the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes ; and if each statute requires proof of an additional fact, which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

An acquittal or conviction upon an indictment for murder is a bar to a subsequent conviction upon an indictment for manslaughter or assault by the same act by which the murder was charged[*435] in the first indictment to have been committed, because such a conviction might have been had upon the first indictment. And so, e conversa, an acquittal or conviction of the manslaughter is a bar tc a subsequent indictment for the murder. Commonwealth v. Roby, 12 Pick. 496, 504, 505, and authorities cited. 1 Stark. Crim. Pl. (2d ed.) 323, 324. 2 Russell on Crimes (4th ed.) 55-59. Rev. Sts. c. 137, § 11. Gen. Sts. c. 172, § 16. Commonwealth v. Drum, 19 Pick. 479. Commonwealth v. Squire, 1 Met. 258, 262. Commonwealth v. Lang, 10 Gray, 11. Commonwealth v. Squires, 97 Mass. 59.

On the other hand, a conviction of an assault with intent to murder was held by this court to be no bar to an indictment for murder, before our statutes permitted a conviction of such an assault upon an indictment for murder. Commonwealth v. Roby, 12 Pick. 496. St. 1805, c. 88, § 2. Rev. Sts. c. 137, § 11, and commissioners’ note. Gen. Sts. c. 172, § 16.

A conviction of being a common seller of intoxicating liquors has been held to bar a prosecution for a single sale of such liquors within the same time, upon the ground that the lesser offence, which is fully proved by evidence of the mere fact of unlawfully making a sale, is merged in the greater offence; but an acquittal of the offence of being a common seller does not have the like effect. Commonwealth v. Jenks, 1 Gray, 490, 492. Commonwealth v. Hudson, 14 Gray, 11. Commonwealth v. Mead, 10 Allen, 396.

It has also been repeatedly held that the offences of keeping a tenement ‘.used for the illegal sale and illegal keeping of intoxicating liquors, of illegally selling such liquors, and of doing secular business on the Lord’s day, are distinct offences, and a conviction of the one is no bar to a conviction of either of the others, although the same acts of sale are relied on in proof of each. Commonwealth v. Bubser, 14 Gray, 83. Commonwealth v. Shea, Ib. 386. Commonwealth v. Cutler, 9 Allen, 486. Commonwealth v. O’Donnell, 8 Allen, 548. Commonwealth v. Trickey, 13 Allen, 559. Commonwealth v. Hogan, 97 Mass. 122. Commonwealth v. Sheehan, 105 Mass. 192.

The case now before us cannot be distinguished in principle from those just cited. The indictment for lewd and lascivious[*436] cohabitation contained no averment and required no proof that either of the parties was married, but did require proof that they dwelt or lived together, and would not be supported by proof of a single secret act of unlawful intercourse. Commonwealth v. Calef, 10 Mass. 153. The indictment for adultery alleged and required proof that the plaintiff in error was married to another woman, and would be satisfied by proof of that fact and of a single act of unlawful intercourse. Proof of unlawful intercourse was indeed necessary to support each indictment. But the plaintiff in error could not have been convicted upon the first indictment by proof of such intercourse and of his marriage, without proof of continuous unlawful cohabitation; nor upon the second indictment by proof of such cohabitation, without proof of his marriage. Full proof of the offence charged in either indictment would not therefore of itself have warranted any conviction upon the other. The necessary consequence is, that, assuming that proof of the same act or acts of unlawful intercourse was introduced on the trial of both indictments, the conviction upon the first indictment was no bar to a conviction and sentence upon the second; and that there is no error in the judgment, for which it can be reversed.

The question of the justice of punishing the offender for two distinct offences growing out of the same act was a matter for the consideration of the grand jury and the attorney for the Commonwealth in the presentment and prosecution, of the court below in imposing sentence, or of the executive in the exercise of the pardoning power. It is not within the jurisdiction of this court as a court of error. Judgment affirmed.