The defendants were tried upon the following indictment, to-wit:
NORTH CAROLINA — Wilkes County — ss. Superior Court of Law, Spring Term, 1844.
The jurors for the State, upon their oaths, present: That Thomas Cowell, late of the said county, laborer, and Amanda Williams, late of the said county, spinster, on 10 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 county, unlawfully did bed and cohabit 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. *Page 179
From this judgment the Solicitor for the State prayed for an appeal to the Supreme Court, which was granted. The Court is of opinion that the State is entitled (232) to judgment against the defendants. In ordinary parlance, adultery is an aggravated species of fornication, both involving an illicit cohabitation between the sexes; but the latter is 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 offense 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," etc., and concludes by enacting "that any person convicted of either of theaforesaid offenses shall be fined," etc. An acquittal of one is therefore not necessarily an acquittal of the other, but the parties may be punished for that particular grade of the offense of which the jury finds them guilty.
The Superior Court will render judgment on the conviction.
PER CURIAM. Reversed.
Cited: S. v. Lashley, 84 N.C. 756.
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