#### STATE vs. THOMAS COWELL AND AMANDA WILLIAMS.

Where, on an indictment for fornication and adultery, the jury found that the defendants were guilty of fornication but not guilty of adultery, the State was entitled to judgment.

Appeal from the Superior Court of Law of Wilkes County at Spring Term, 1844, his Honor Judge Battle presiding.

The defendants were tried upon the following indictment, to wit :

“ North Carolina, ) { Superior Court of Law, Wilkes county, > S ‘ { Spring Term, 1844.

The jurors for the State upon their oaths present, That Thomas Cowell, late of said Comity, laborer, and Amanda Williams, late of the said County, spinster, on the 10th day of March, in the year aforesaid, and on divers other days and times both before and after that day, with force and arms in the said comity, unlawfully did bed and co-habit together, without being lawfully married, and then and there did commit fornication and adultery, against the form of the Statute in such case made and provided, and against the peace and dignity of the State.”

The jury found the defendants guilty of fornication but not of adultery. On motion to the Court on behalf of the State, for judgment against the defendants, the Court, being of opinion that the verdict of the Jury amounted to a verdict of acquittal, refused to render the judgment prayed for, and ordered that the defendants go without day.

From this judgment the Solicitor for the State prayed for an appeal to the Supreme Court, which was granted.

Attorney General for the State.

No comisel in this Court for the defendants.

Ruffin, C. J.

The Court is of opinioh that the State is *232entitled to judgment against the defendants. In ordinary parlance, adultery is an aggravated species of fornication : both involving an illicit co-habitation between the sexes ; but the }attea, jg constituted, where the parties are single, or, at least, one of them; while the former imports a violation of the marriage bed. It is true, that the signification of the words, as generally received, would not be material if it were perceived that they were used by the Legislature in a peculiar and different sense; for example, as meaning precisely the same thing, instead of different modifications of an offence of the same general nature. But the language of the Legislature renders it clear, that those terms are used in the statute according to their common acceptation. The Act begins with the words, “ the crimes ” (in the plural number) “ of fornication and adultery &c.” and concludes by enacting, “ that any person convicted of either of the aforesaid offen-ces, shall be fined &c.” An acquittal of one is therefore not necessarily an acquittal of the other; but the parties may be pmrished for that particular grade of the offence, of which the jury finds them guilty.

This will accordingly be so certified to the Superior Court, that judgment may be rendered on the conviction.

Per Curiam, Ordered accordingly.