The defendant was indicted for an alleged rape of a girl fifteen years of age, the alleged offense being committed March 4, 1910. Tried at *562August term, Supreme Judicial Court. Verdict guilty. The defendant moved for a new trial. In relation to his being a married man the defendant, on direct examination, testified as follows: Q. "Whether or not you have a wife?” A. "I have.” Q. "Have you a wife living?” A. "No sir.” Q. "When did your wife die?” A. "Two years ago the 12th of last January.” And on cross-examination, in relation to the same matter, he testified as follows: Q. "You say, Mr. Lumbert, that you are 33 years old?” A. "I do.” Q. "You have been a married man?” A. "I have.” The rescript says: "In this case the respondent was indicted for rape and convicted. He admitted his improper relations with the complainant. From the evidence, however, the only reasonable conclusion to be drawn is that, being a married man, he was guilty of adultery.”

Motion sustained. New trial granted.