delivered the opinion of the court.
The appellant has been indicted and convicted of the offense of adultery, which crime is defined by § 2700 of the Code of 1880 as follows: “If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum *443not more than five hundred dollars each and imprisoned not more than six months, at the discretion of the court [and it shall not be necessary to constitute the offense that the parties dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse].”
The statute above quoted, except so much as is included in brackets, is identical except as to the punishment to be inflicted with that of the Codes of 1859 and 1871; that portion in brackets first found expression in the Code of 1880. The facts disclosed by the l’ecord are that the appellant was the teacher of one of the public schools of the county in which there was an average attendance of from eighty to one hundred pupils. Hannah Boyd, with whom the offense is charged to have been committed, was a pupil in the school. It is shown by the testimony of Hannah that on five or six occasions during a scholastic term of three months she remained at the school-room after the other pupils had returned to their homes, at which times and place, but at no other, the appellant had sexual intercourse with her. The question is whether these facts are sufficient to uphold a conviction for the offense defined by the statute. In Carotti v. The State, 42 Miss. 334, it was said that to consti■tute the offense as defined by the Code of 1857, “the parties must dwell together, openly and notoriously, upon terms as if the conjugal relation existed between them. It consists in the living together in the manner of husband and with without being lawfully married, in the open assumption of the visible forms and rights' of matrimony without the sanction of the nuptial tie, and without incurring those obligations and responsibilities which attach to the married state ” In Kinard v. The State, 57 Miss. 132, this court, in commenting on the Carotti Case, says: “When the court announces in that case that in order to constitute the offense of unlawful cohabitation the parties must dwell together openly and notoriously upon terms as if the conjugal relation existed between them, it is not meant that they should pass themselves off on the community as husband and wife, but only that they should openly and notoriously consort and live together as if they rvere husband and wife, that is to say, as husbands and wives usually live. The doctrine enunci*444ated is that clandestine acts of sexual intercourse, no matter how often repeated, do not constitute unlawful cohabitation unless the parties openly and notoriously live together as paramour and concubine, habitually assuming and exercising toward each other the rights and privileges which belong to the matrimonial relation. The decision is that no continuance of illicit intercourse makes out the crime so long as it is secret or attempted to be made so, but that whenever secrecy is abandoned and the concubinage is open, the offense is complete. In the interests of morality, it is perhaps to be regretted that a more vigorous doctrine cannot be deduced from our present statutes and the decisions upon similar statutes elsewhere.”
The amendment introduced into the Code of 1880 Avas intended to reach a class of cases not punishable under the previous statutes, persons who habitually indulged in unlaAvful intercourse, but who did so furtively and without assuming the form of the marital relation. In the cases of Oarotti and Kinard, the Avord “cohabit” had been construed to mean a condition or status of the parties, a status resembling that of the marital relation, the existence of which it Avas necessary to prove by independent testimony other than that of sexual intercourse. By the Code of 1880 it is declared that “it shall not be necessary to constitute the offense that the parties shall dwell together publicly as husband and wife, but it ” (the offense) “ may be proved by circumstances which show habitual sexual intercourse.” Cohabitation in its usual sense implies publicity, since two persons cannot secretly live together. It is therefore evident that its signification as used in the Code of 1880 is someAvhat different from that in Avhich it was used in the previous codes. It is more difficult to define than to appreciate the change Avrought by the statute, but it is probably sufficiently accurate to say that it condemns that state of concubinage in which the parties, whether dwelling together or not, habitually indulge in sexual intercourse. It is not necessary that they shall dAvell together, nor that they publicly avow the relationship which exists between them ; it is sufficient to sIioav that condition or relationship, Avhether it be avowed or concealed, Avhich, if publicly known, would lead *445men to characterize the woman as the mistress of the man. It is habitual concubinage or lying together which constitute the cohabitation meant by the statute.
Where a cohabitation, using the word in its usual sense is shown, one or more acts of sexual intercourse clearly proved, or circumstances from which the fact of such intercourse would necessarily be inferred, as that the parties slept in the same bed, would uphold a verdict of guilty, but in the absence of evidence of such cohabitation or living together it is not sufficient to prove occasional acts of sexual-intercourse, it is necessary to prove such intercourse so often repeated as to become habitual, or circumstances indicating that it is habitual. On the facts of the case now before us, we are of opinion that admitting all the testimony proves, and all that may be fairly inferred from it, habitual sexual intercourse is not proved, and the
Judgment is reversed.