Opinion
33888.
DECIDED APRIL 17, 1952.
Certiorari; from Fulton Superior Court — Judge Moore. October 1, 1951.
Guy Tyler, Marvin O'Neal Jr., for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, C. O. Murphy, contra.
1. Where, under the provisions of Code § 26-5801, the accused is indicted in four counts charging him with fornication, in that he was an unmarried man and the female was an unmarried woman; with adultery, in that he was a married man and the female was a married woman; with fornication and adultery, in that he was a married man and the female was an unmarried woman; and with fornication and adultery, in that he was an unmarried man and the female was a married woman; and the only evidence of the marital status of the defendant is that he asked one of the arresting officers to keep the alleged offense out of the papers as he did not wish his wife to hear of it — a general verdict of guilty is unauthorized, as such evidence is not sufficient to authorize a conviction under any of the four counts in the indictment. Freeman v. State, 61 Ga. App. 849 ( 7 S.E.2d 779); Tison v. State, 125 Ga. 7 ( 53 S.E. 809); Craft v. State, 13 Ga. App. 79 ( 78 S.E. 776); Zackery v. State, 6 Ga. App. 104 ( 64 S.E. 281); Miller v. State, 9 Ga. App. 827 ( 72 S.E. 279); Williams v. State, 86 Ga. 548 ( 12 S.E. 743); Bennett v. State, 103 Ga. 66 ( 29 S.E. 919); Kendrick v. State, 100 Ga. 360 ( 28 S.E. 120); Neil v. State, 117 Ga. 14 ( 43 S.E. 435).
2. It follows from what has been ruled in division 1 above that, where an accused is convicted in the Criminal Court of Fulton County under the circumstances indicated above, and applies for the writ of certiorari to the Superior Court of Fulton County, assigning error upon the ground that the verdict is contrary to the evidence, the superior court errs in overruling and denying the certiorari.
3. Since the case must be remanded for a new trial, the special grounds of the petition for certiorari, assigning error upon the charge of the court, which alleged errors are not likely to recur on a new trial, are not considered at this time.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.