
    THE STATE vs. JOHN MAINOR AND LILLY WILKES.
    Where, upon a trial for fornication or adultery, one party is found guilty and the other not guilty, no judgment can be rendered against the former. The ease of The State v. Tom, 2 Dev. 5G9, cited and approved.
    Appeal from the Superior Court of Law of Robeson County, at the Spring Term, 1846, his Honor Judge Dick presiding.
    The two defendants, a man and woman, were indicted for committing the crime of fornication, by bedding and co-habiting 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.
    
      Attorney General, for the State,
    No counsel in this Court for the defendants.
   Ruffin, C. J.

The Court holds, that after the acquittal of one of the defendants, there could be no judgment against the other. The crime 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 accessary, which wc find in the books. Rex v. Sudburg and Heafs, Ld. Ray. 484, Salk. 493. State v. Tom, 2 Dev. 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 lie 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.

■ Let it be certified to the Superior 'Court, that there was no error in' arresting the judgment.

Per Curiam. Ordered to be certified accordingly.  