SAMFORD, J.
To sustain a conviction for the offense of adultery or fornication, there must be proven by the state, beyond a reasonable doubt, either by direct evidence or by facts and circumstances that will warrant the jury in reaching the conclusion that there has been at least one act of illicit intercourse, with an agreement between the defendants, either expressed or implied, to continue the relation whenever opportunity offered and they so desire. Brown's Case, 108 Ala. 18, 18 So. 811.
We have examined the record in this case and the evidence utterly fails to justify a conviction, but rather indicates that the prosecution was in retaliation for one of the, defendants and her two sons having testified against one of the state's witnesses in a prosecution against him.
The motion for a new trial should have been granted.
Reversed and remanded.