
    The State vs. Cagle and Boling.
    In an indictment against persons for living and co-habiting together in IewcTness, it is not necessary that it should be charged that such living and co-habiting together in lewduess was notorious. The notoriety of such conduct constitutes no part of the offence.
    At the April term, of the circuit court held for Sevier county,. 1840, the grand jury indicted Elijah Cagle and Betsy Boling for the offence of lewdness.
    The indictment charges that on “the 1st day of January, 1840, and upon divers other days between that day and the day of the filing of the indictment, Elijah Cagle, of the county of Sevier, lav borer, and Betsy Boling of same county, [spinster, being persons of evil disposition and designing to corrupt the morals of the people of the State unlawfully, openly and publicly did live, dwell and co-habit together in lewdness and adultery in the county of Sevier, they being unmarried to and with each other,”’ &C.
    The defendants pleaded not guilty to the charge, and issue was joined thereupon. At the August term,succeeding, the cause was submitted to a jury upon the evidence. The jury not being able to agree a mistrial was entered by consent, and the defendants recognized to appear at the succeeding term. At the December term, the cause was again submitted to a jury, who found defendants guilty as charged in the indictment. Upon motion of the defendants this verdict was set aside and a new trial granted them, and they were recognized to appear at the April term, 1841.
    At the April term it was again submitted to a jury, Scott, judge, presiding. It appeared that Cagle was a resident of the county of Sevier; that he owned a tract of land upon which he and his family, consisting of a wife and several children', resided; that Betsy Boling, a single woman, had resided for several years upon the land of Cagle and continued to reside thereupon; " that she lived in a house about a quarter of a mile from the dwelling-house of Cagle; that she had three bastard children,- two of which had been bom during the residence of said Betsy on the land of Cagle; that Ca-gle’s wife had become dissatisfied with the residence of said Betsy Boling on the land of her husband, Cagle, and had left the place and refused for a considerable length of time to live with Cagle; that Cagle had been seen to go to bed with Betsey; that he had been also with her' under the shade of a tree alone in the woods; that Cagle paid the fees of the physician attendant upon Betsy at the birth of her last child; that his brother had expostulated with him on the subject of his conduct, and that he had said that he would do as he pleased. Such was the substance of the testimony introduced to the jury.
    The court charged the jury, that the question before them was whether the crime charged in the indictment had been made out in proof, that they were the sole judges of the credit of witnesses, the weight of evidence and of what facts were sworn to by the witnesses; that if they were satisfied that the defendants had been guilty of the illicit and adulterous intercourse as charged upon them in ■the indictment, within twelve months preceding the finding the indictment, they should say so; that it was not necessary that proof should be introduced that the parties were actually seen in the act of adultery or that they were publicly detected; that it was not necessary that there should be any public exhibition of indecency to constitute the offence; that it mattered not how secretly the parties may have in fact perpetrated their acts of adulterous and unlawful intercourse, provided they lived and co-habited together openly and publicly.
    The jury returned a verdict of guilty. A motion was made for a new trial. This motion was overruled. The defendants then moved in arrest of judgment on the ground that there was no indictable offence charged against them, it not heing charged that the living and co-habiting of the defendants together was “notorious.” The court sustained this motion and arrested the'judgment.
    From this judgment, Gray Garret, attorney general, appealed in error to the supreme court, and defendants were recognized to appear accordingly.
    
      Attorney General, for the State.
    
      Reneau, for defendants,
    relied on Grisham and Ligan vs. The State, 2 Yerg. 588.
   Reese, J.

delivered the opinion of the court.

Cagle and Boling were indicted and convicted for the offence of “unlawfully, openly and publicly dwelling and co-habiting together in lewdnsss and adultery, being unmarried to and with each other.”

The judgment was arrested by the circuit court upon the ground that the living, dwelling and co-habiting together in lewdness and adultery, being unmarried, is not charged in the indictment to have been notorious. For the State it is urged, that if two persons of differing sex, live, dwell and co-habit together with the apparent relation of man and wife, without in fact being married, and therefore in lewdness and adultery, although the fact of being unmarried might not be generally known or notorious, the offence would be indictable without alleging or provingsuch notoriety, the gravamen of the offence consisting in the adulterous co-habitation of unmarried persons, and not in the general knowledge of the community of the negative fact of their being so unmarried. And this is probably correct. The allegation of notoriety, however, in the case before us, if necessary, is sufficiently made by the terms, “openly and publicly.” We see no reason therefore, why, upon the ground suggested, the judgment should have been arrested.

But a writ of error on the part of the defendants has been prosecuted for the alleged misdirection of the judge in his charge to the jury, and for his refusal to grant a new trial. It is insisted that the charge of his Honor involves the position that a secret and single act of adultery, if proved, constitutes an indictable offence. Isolated expressions, or detached portions of the charge, considered seperately might maintain the assertion. But the entire charge, fairly considered, in its scope and meaning, and with reference to the allegation and proof, leads us to believe that such was not the statement of thejudge, and such could not have been the inference of the jury from what was said. We deem it unnecessary here, of course to extract the charge of the court, such being our conclusion as to its meaning. There is no pretence to ask for a new trial upon the facts proved.

The judgment of the circuit court, therefore, in arresting the judgment, will be reversed, and this court will render judgment upon the verdict of the jury.  