Under our code two modes of committing the offense of fornication are designated: 1. By living together and carnal *348intercourse with each other of a man and woman, both being unmarried. 2. By such man and woman having habitual carnal intercourse with each other, without living together. Penal Code, art. 837.

In this case the indictment charges that the man and woman did have habitual carnal intercourse with each other, but does not allege that they lived together at the time of having such intercourse, nor that they had such intercourse without living together.

It was doubtless the intention of the pleader to charge the second mode ■of committing the offense, that is, by having habitual carnal intercourse with each other without living together. He failed, however, to so charge, as the words of the statute, “ without living together,” are not used in the indictment.

We are of the opinion that the indictment is fatally defective because it does not charge either of the modes of committing the offense of fornication. Mitten v. The State, 24 Texas Ct. App., 346.

Because the indictment is defective in matter of substance, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

Hurt, J., dissents.