
    *The Commonwealth v. David Isaacs and Nancy West.
    November, 1826.
    Criminal Law — Fornication—Common-Law Offence. The offence of fornication, (or the cohabiting- together. by a man and a woman, in a state of illicit commerce, as man and wife, but without marriage.) is not punishable as a common law offence. The statute, which prescribes a penalty for the offence, most be pursued in such case.
    At the Superior Court of Law held for Albemarle, the Grand Jury made the following presentment: “We, on our oath, present David Isaacs, and Nancy West, (a free mulatto woman) for outraging the decency of society, and violating the laws of the land, by cohabiting together in a state of illicit commerce, as man and wife, without being lawfully married,” &c. &c. ; on the evidence of two persons named. The defendants were summoned to shew cause why an Information should not be filed against them, and that Court adjourned to the General Court the following question of law, viz: “Whether, admitting the facts presented by the Grand Jury to be true, an Information will He for the said offence, at the suit of the Commonwealth?”
    
      
       Crimina* Law — Incontinence—Common-Law Of-fence. — To the point that incontinence of itself is not punishable at common law. the principal case is cited in Com. v. Jones. 2 Gratt. 557
      Same — Lewd and Lascivious Cohabitation-indictment. —Under the seventh section of ch. 192 of (he Code of Virginia, 1873, p. 1208, an indictment for lewd and lascivious cohabitation may be either joint or separate. Scottv. Com., 77 Va. 316, citing principal case as authority.
      The offence of lewd and lascivious cohabitation is a statutory offence, and the statute must be strictly conformed to. Jones v. Com. 80 Va. 19, citing prin-pal case as its authority.
      See further, monographic note, on “Indictments, Informations and Presentments” appended to Boyle V. Com., 14 Gratt. 674.
      The principal case is also cited in Jones v. Com., 80 Va. 20; Com. v. Turner, 5 Rand. 679; State v. Foster, 21 W. Va. 770.
    
   DADE, J.

delivered the opinion of the Court.

This case involves the principal question which we have just decided iri the case of Anderson v. The Commonwealth,- and upon those grounds, it will not. therefore, be now discussed. If the presentment be of a -single act of fornication, without other circumstances, then it clearly falls within the statute for the punishment of adultery and fornication, under which there is no doubt an Information *might be filed, and there is as little doubt that it could not be prosecuted as a mere common law misdemesnor. But, if by the charge of cohabitation “as man and wife,” is intended, as we presume it is, that these people occupied the same chamber, ate at the same board, and discharged towards each other the numerous common offices of husband and wife, then it may be said that a publicity is given to the statutory offence of fornication, which aggravates its malignity, so as to draw it within the scope of a common law prosecution. But, this we apprehend is a mistake in the premises. The act of fornication in public, would be Indeed an enormous indecency, and so grossly offensive and shocking to the feelings of society, as to entitle it to severe legal animadversion. But, nothing of that sort -is pretended to exist in this case, which in truth presents nothing to the public but a number of facts, in themselves harmless and inoffensive, from which the existence of a statutory offence may be inferred. Do these inoffensive evidences of an unlawful act, in themselves constituíe art offence? Surely not. Then it has been already decided that they cannot be connected with the statutory offence, so as to make a new crime out of the combination. And therefore, we are of opinion, that no Information for a misdemesnor at common law, can be maintained on this presentment.

The following is to be entered as the judgment of the Court.

The Court is of opinion, and doth decide, that the presentment of the Grand Jury in this case, is good ground upon which to award a rule to shew cause why an Information should not be filed against the defendants for an act of fornication upon the act of Assembly, intituled “an act for the suppression of vice, and punishing the disturbers of religious worship and sabbath-breakers,” but that it does not furnish the grounds of any Information against them as for a common law misde-mesnor; which is ordered to be certified.  