The defendant was indicted for the offense of fornication. It is alleged in the indictment, that “said Nancy Bigby, an unmarried woman, on the 11th day of February, 1871, in the county aforesaid, did then and there unlawfully and with force and arms, cohabit and have sexual intercourse with one James A. Foster, then and there being lawfully married to. another woman, contrary to the laws of said State,” etc. There was a demurrer to the indictment, on the ground that an unmarried woman cannot commit fornication with a married man. The Court overruled the demurrer, and the defendant excepted. The 4460th section of the Code declares, that “any man and woman who shall commit adultery or fornication, or adultery and fornication, shall be severally indicted,” etc. This section of the Code contemplates three distinct offenses: adultery, fornication, adultery and fornication. If a married man and married woman, unlawfully co*346habit together, they are guilty of the offense of adultery. If an unmarried man and an unmarried woman cohabit together, they are guilty of the offense of fornication. If a married man and unmarried woman cohabit together, they are guilty of the offense of adultery and fornication. To constitute the last named offense, one of the parties must be married and th$ other unmarried. The unlawful cohabitation of a married man and an unmarried woman, is not adultery, nor is it fornication, in the meaning of the Code; but it is adultery and fornication, and -should be so charged in the indictment. The demurrer to the indictment, which charged the defendant with the offense of fornication, having been made at the time and in the manner as prescribed by the Code, should have been sustained, and the Court below erred in overruling the demurrer to the indictment.
Judgment reversed.
Loehkane, Chief Justice, concurred, but furnished no written opinion.