The two defendants, a man and woman, were indicted for committing the crime of fornication, by bedding and cohabiting together without being married. They pleaded not guilty, and were put on their trial together, and the jury found Mainor guilty and Wilkes not guilty. Upon the motion of the defendant, Mainor, the judgment was arrested, and the solicitor appealed. The Court holds that after the acquittal of one of the defendants there could be no judgment against the other. The crime *Page 247 charged on those persons could not be committed but by both of them, and upon a verdict, that one of them was not guilty, it appears conclusively that the other could not be. It is exactly like the cases of riots, conspiracies, and principal and accessory, which we find in the books. Rexv. Sudburg, Ld. Ray., 484; Salk., 493; S. v. Tom, 13 N.C. 569. The farthest the courts have gone is to allow one of the parties to be tried by himself and convicted, and then judgment is given against that party, because, as to him, the guilt of the other party is found as well as his own. But when the one has been previously tried or acquitted, or when both are tried together and the verdict is for one, the other cannot be found guilty, for he cannot be guilty, since a joint act is indispensable to the crime in either, and the record affirms that there was no such joint act.
PER CURIAM. Affirmed. (341)
Cited: S. v. Parham, 50 N.C. 417; S. v. Ludwick, 61 N.C. 405; S. v.Gardner, 84 N.C. 734; S. v. Rinehart, 106 N.C. 789.
Overruled: S. v. Cutshall, 109 N.C. 767, 768, 770, 771, 772; S. v.Simpson, 133 N.C. 679.