#### THE STATE *vs.*JOHN POTEET & AL.

On the trial of an indictment, under the Statute, for fornication and adultery, it is not necessary to shew by direct proof the actual bedding and cohabiting ; it is sufficient to shew circumstances from which the jury may reasonably infer the guilt of the parties.

Where on such a trial a witness testified that ho went early one morning to the house of one of the defendants, and on knocking was after some hesitation admitted by the other defendant, the female, who came to the door, with her frock on but unfastened — that the male defendant was in the only bed in the room — that the «hoes of the female were near the head of tho bed, and that the bed seemed to be very much tumbled. *Held,*that the Judge did right in refusing the instruction, prayed for by the defendants, that there was *no*evidence from which the jury might infer the criminality of the defendants.

Appeal from the Superior Court of Law of Caswell County, at the Fall Term, 18-47, his Honor Judge Bat ley presiding.

This was an indictment under the section of the Revised Statutes, concerning fornication and adultery, to which the defendants pleaded not guilty. On the trial the State examined a witness, by the name of Willis, who testified, that, on the morning preceding the last Easter, he, in company with another individual, went to the house of the defendant Poteet, at a very early hour between day-break and sun-rise, and knocked at the door of the room, in which this defendant was in bed; and, on knocking, he heard the voice of the defendant, Martha Hooper, refusing admission, but the defendant, Poteet, told her to open the door and let the witness in. She accordingly opened the door, and the witness entered the room, and found Poteet in bed, the bed very much tumbled; the defendant, Martha, had on her frock, but it was not fastened, and her shoes were also off and were lying in the corner near the head of the bed. This witness further testified *24on cross-examination, that there were two other rooms, adjoining the room in which he saw the defendants, the doors of which were closed, and he could not see whether there was a bed in either of the rooms or not. He was asked if the defendant Martha lived with Poteet, and he replied that he had seen her there several times, when passing, but could not say whether she lived there or not. Another witness for the State testified substantially to the same facts, except, that, in regard to the shoes of the defendant Hooper, as to which he stated, that they were lying- in the corner, when he and the first witness went into the room, but said nothing about their being near the bed. A third witness testified that the defendant, Martha, had lived in the house with the defendant, Po-teet, for four or five years, and that she had been married, but her husband was dead.

The defendant’s counsel insisted that there was no evidence to be loft to the jury, tending- to shew the guilt of the defendants, and asked the Court so to charge.

The Court declined giving the instruction asked for, but charged the jury, that, before they could convict, they should be satisfied from the evidence, that there was an habitual criminal intercourse between the parties, or a surrender of the person of the one to the gratification of the other. The jury returned a verdict of guilty, and from the judgment pronounced thereon by the Court, the defendants appealed.

*Attorney General,*for the State.

*Morehead,*for the defendants.

Daniel, J.

There was no express evidence to prove, that the defendants “ bedded and cohabited together.” But, in the absence of express and positive testimony, the law authorized the conviction of the defendants on presumptive evidence, if it was so strong as to leave no reasonable doubt on the minds of the jury, that they were *25guilty. The Court is of opinion, that the facts and circumstances, proved on behalf of the State, all tended to support the charge in the indictment, that the defendants did bed and cohabit together ; and that the Judge could not have said, that there was *no*presumptive evidence to support the indictment. The weight of the evidence was left to the jurythey convicted the defendants, and the Court rendered judgment, which ure affirm.

Per Curiam. Ordered to be certified accordingly,.