
    NASHVILLE: DECEMBER TERM, 1847.
    Belcher & Fox vs. The State.
    Neither the fact of living in adultery nor its openness or notoriety can be ptoved by the rumor and talk of the neighborhood.
    At tbe October term of the circuit court, held for White county, Picket, Attorney General preferred a bill to the grand jury against B. Belcher andMatildaFox for op’en and notorious lewdness.
    It charged that “Bartlett Belcher and Matilda Fox on the 1st day of June, 1847, and on divers other days between that day and the finding of this bill of indictment in the county of .White, State of Tennessee, then and there unlawfully, openly, publicly and notoriously did dwell, live and cohabit together ás man and wife, they being then and there unmarried to each other, to the manifest corruption of their own and the public morals, in contempt of the laws of the land and against the peace and dignity of the State.”
    This was returned a-true bill, and not guilty being pleaded thereto, a jury came and the case was submitted to them at the October term 1847, under the direction of W. B. Campbell, the presiding judge. It was proved that the defendants were not married, that they lived together in the same house; that there was but one bed and they were seen to sleep together, and there were other proofs of cohabitation.
    These proofs having been heard, the attorney general asked the witness whether it was not notoriously known and talked of in the neighborhood in which the defendants lived that they did live together, openly, notoriously and publicly as man and wife and in adultery. The attorneys for the defendant objected to the admission of this testimony. The objection was overruled. The witness then stated that it was rumored, talked of and known that they lived there in adultery and publicly.
    The júry found the defendants guilty, and the judge sentenced them to be lined $50, and to be confined in the common jail of White county in separate apartments for the space of six months.
    From this judgment the defendant appealed.
    
      S. Turney and TV. Cullom, for the plaintiffs in error.
    
      Attorney general for the State.
    
   Geebn, J.

delivered the opinion of the court.

The plaintiffs in error were indicted in the circuit court of White county, for open and notorious lewdness.

On the trial, it was proved by Polly Bertram and Lucretia Belcher, that the parties lived together publicly, and Polly Bertram had seen them in bed together. Thomas Johnson, a witness was then introduced for the State, and was asked by the attorney general, whether it “was not notoriously known, and talked of in the neighborhood in which the defendants lived, that they did live together openly, notoriously and publicly as man and wife, and in adultery. To the answering of this question, the defendant’s counsel objected, which objection was overruled and the witness permitted to answer the question. When the witness answered, that it was rumored, talked of, and known, in the neighborhoo'd, that they lived there in adultery, not being married, and publicly.”

The jury found the defendants guilty, and they appealed to this court.

The only question in this record, is, whether the evidence of Johnson was competent.

It was competent for the attorney general to have proved, that the parties lived together as man and wife, openly and notoriously — but this fact, like every other fact, must be proved by competent testimony. But in this case, the attorney general enquires “whether it was hot notoriously known, and talked of in the neighborhood” &c., and the witness replied that, “it was rumored, talked of, and known that they lived in adultery” &c. Now this is proving the adultery, by proof of the rumor, and talk in the neighborhood, that it existed. This cannot be done. The witness should have been asked whether the parties lived together openly and notoriously, as husband and wife? and his affirmative response would have proved the fact, and would have been competent.

It is true, that there is other evidence, sufficient, in our opinion to have authorized a verdict of guilty — but we cannot tell how much influence this illegal evidence had upon the minds of the jury, and, therefore, we feel constrained, reluctantly, to reverse the judgment and order a new trial. Judgment reversed.  