Plummer v. State , 27 Ga. App. 185 ( 1921 )

Broyles, C. J.

1. The defendant’s conviction not depending wholly upon circumstantial evidence, the court did not err, in the absence of an appropriate written request, in failing to instruct the jury upon the law of circumstantial evidence.

2. There is no merit in those special grounds -of the motion for a new trial that assigned error because the judge, after the verdict had been returned and before passing sentence on the defendait, stated from the bench that he thought the verdict was “ eminently correct.” Nor did such expression disqualify the judge from passing upon the defendant’s motion for a new trial.

3. The remaining special grounds of the motion for a new trial are without substantial merit.

4. The defendant was convicted of the offense of adultery and fornication. While the evidence did not demand a finding that she was a married woman at the time of the commission of the offense charged, it was ample to authorize that finding. Such a fact may be shown either directly or circumstantially. “ The fact of the marriage may be at least prima facie shown by any of the following methods: by proof of general repute-in family (Civil Code (1910), § 5764); by proof of general reputation in the community (Drawdy v. Hesters, 130 Ga. 161, 60 S. E. 451, 15 L. R. A. (N. S.) 190; Clark v. Cassidy, 62 Ga. 407; Wood v. State, 62 Ga. 406); by proof of the fact that the man or the woman, as the ease may be, lives together with a person of the opposite .sex as his or her spouse, with general recognition in the community of their being married to each other. Clark v. Cassidy, supra.” Miller v. State, 9 Ga. App. 827 (72 S. E 279).

Decided June 14, 1921. Rehearing denied June 30, 1921.

Accusation of adultery and fornication; from city court of Dublin — Judge Sturgis. March 29, 1921.

S. P. New, for plaintiff in error. William Brunson, solicitor, contra.

5. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.