
    E. Wells and Ada Thompson v. The State.
    Fornication—Evidence. — In a trial for fornication, as defined by the Revised Penal Code, art. 337, it is incumbent on the State to prove that the male and female fornicators were both unmarried when they committed the offence.
    Appeal from the County Court of Lamar. Tried below before the Hon. W. S. Moore, County Judge.
    The jury assessed a fine of $250 against each of the appellants.
    
      John C. Easton, for the appellants.
    
      George McGormick, Attorney-Greneral, for the State.
   White, P. J.

“Fornication is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried.”

It was under this statute that the appellants were tried and convicted. The evidence fails to make out the case. It is neither proven that either or both the parties were unmarried, nor that that they were not husband and wife and married to each other, when the State’s witness saw them for months occupying the same room. To make out the case, the State should have shown that the parties, in the language of the statute, were “ both unmarried.”

The judgment is reversed and the cause remanded.

Reversed and remanded.  