Opinion
27997.
DECIDED MARCH 6, 1940.
Adultery; from Habersham superior court — Judge Candler. August 31, 1939.
Hamilton Herbert B. Kimzey, Sam Kimzey, Grover C. Oliver, J. Herbert Griggs, for plaintiff in error.
J. Fred Kelley, solicitor-general, J. E. Frankum, contra.
The defendant was convicted of adultery. The only evidence of the marriage of the male with whom the defendant was alleged to have committed the adultery was the testimony of the witness that "I know Earl Canup is a married man, because he told me he was married." This was not sufficient proof of such fact, the burden being upon the State to prove this essential fact (the marriage of both parties) before a conviction of either party would be authorized. Zackery v. State, 6 Ga. App. 104 ( 64 S.E. 281); Tison v. State, 125 Ga. 7 ( 53 S.E. 809); Craft v. State, 13 Ga. App. 79 ( 78 S.E. 776). For methods of proving marriage in adultery cases see Miller v. State, 9 Ga. App. 827 ( 72 S.E. 279).
Judgment reversed. Broyles, C. J., and Guerry, J., concur.