Opinion
46633.
ARGUED OCTOBER 4, 1971.
DECIDED OCTOBER 28, 1971. REHEARING DENIED NOVEMBER 18, 1971.
Adultery, etc. Crawford Superior Court. Before Judge Culpepper.
John C. Scarborough, Jr., W. B. Mitchell, for appellant.
Fred M. Hasty, John P. Howell, for appellee.
The defendant was convicted of maintaining a disorderly house, adultery and fornication, and three counts of adultery. Held:
1. A witness for the State, a woman who was not a party to any of the alleged crimes, testified over objection that sometime between 1965 and 1968 defendant performed an act of indecency upon her within the privacy of the defendant's home in Bibb County with no one else present. The evidence of this transaction is completely foreign to and has no logical connection with the crimes charged against defendant. Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible. Code § 38-201; Spencer v. State, 95 Ga. App. 454 ( 98 S.E.2d 94). Although this act of indecency committed in the privacy of defendant's home does not constitute a crime (see Riley v. Garrett, 219 Ga. 345, 347 ( 133 S.E.2d 367) and former Code § 26-6101), nonetheless, there is the possibility that it was considered by the jury as a loathsome and disgusting act which would have the effect of exciting the jury's prejudice and passion against the defendant. The admission of this evidence constitutes reversible error.
2. All other errors urged are without merit.
Judgment reversed. Pannell and Deen, JJ., concur.