Zackery v. State , 6 Ga. App. 104 ( 1909 )

Hill, O. J.

1. To constitute the offense of adultery in this State, both parties to the criminal act must be married persons at the time of its commission. The burden is upon the State to prove this essential fact, before a conviction of either party would be authorized. Penal Code, §381; Bennett v. State, 103 Ga. 66 (29 S. E. 919).

Accusation of adultery, from city court of Sylvester — Judge Williamson. January 30, 1909.

Submitted March 30, — Decided April 15, 1909. Olmde Payton, for plaintiff in error. J. E. Tipton, solicitor, contra.

2. Mere reputation, unsupported by proof of cohabitation, is by itself insufficient to establish a marriage. Wood v. State, 62 Ga. 407.

•3. Where, on the trial of a man charged with the offense of adultery, the State relied upon evidence that at some indefinite time, prior to the commission of the alleged offense, the defendant was generally reputed to have been married, and to have cohabited with some unnamed woman, and that he himself had so stated, this was insufficient to establish the fact of his marriage at the time of the alleged adultery.

Judgment reversed.