¶1delivered the opinion of the court.
¶2Byron, who was a married man, was indicted for living in a state of open and notorious adultery with an unmarried woman, and for lewdly and lasciviously abiding and cohabiting with the same woman, (naming her.) There were two counts in the indictment, charging, these separate offences. The jury found the defendant guilty under each count, and on the first assessed the punishment at three months’ imprisonment in the county jail, and on the second, at a fine of $300. As only one offence was proved on the trial, the court granted a new trial on the first count, and thereupon the circuit attorney entered a nolle prosequi as to that count, and judgment was entered on the second count. A motion was made in arrest of judgment, which was overruled, and the defendant appealed.
¶3The court would have found itself embarrassed in granting a new trial as to one count in an indictment and entering a judgment on the other, had not the difficulty been obviated by entering a nolle prosequi as' to the count on which the new trial had been granted.
¶4*2121. The clause of the statute under which the second count is framed is in these words : “ Every man and woman (one or both of whom are married and not to each other,) who shall lewdly and lasciviously abide and cohabit with each other,” &c. Now the second count in the indictment, in effect, charges that R. J. Byron, being a married man, but not married to Eliza Miller, did lewdly and lasciviously abide and cohabit with the said Eliza Miller. It is plain that this count does not pursue the words of the statute. The charge should have been, that R. J. Byron and Eliza Miller did lewdly and lasciviously abide and cohabit with each other, he, the said R. J. Byron, being a married man, but not married to the said Eliza Miller.