The defendants were charged in the first count of the information, with living in a state of open and notorious adultery, and of this charge they were acquitted, so that the instructions with respect to this need not be considered. The second count of the informa,tion was based upon that part of section 1541, Revised Statutes, 1879, which provides that “every man and woman, one or both of whom are married, and not to each other, who shall lewdly and lasciviously abide and cohibit with each other,” on conviction shall be adjudged guilty of a misdemeanor. The instruction given on behalf of the state did not include any elements of open conduct. The instruction given by the court, of its own motion, told the jury that in order to convict upon the second count it was not necessary that the acts of illicit, sexual intercourse between the parties should be open and notorious, still they must find that the defendants lived together as man and wife, and indulged in sexual intercourse habitually, or in conformity to a regular custom, and unless they did so find they should acquit. *442The court refused to instruct that the acts must be open and notorious to constitute the offence charged in the second count. It is plain from the reading of the statute, that the two offences with which the defendants were charged, are of different classes. In the first, [the acts must be open and notorious, but this is not so with respect to the second class. The instructions given, properly declare the law.
It does not appear from the record that the defendants were arraigned, either before the justice or in the .criminal court, and in this, it is conceded on behalf of the state, there is error, because of which the j udgment is reversed and the caus.e remanded.
All concur.