Sanders v. State , 145 Ga. App. 73 ( 1978 )

145 Ga. App. 73 (1978) 243 S.E.2d 274

SANDERS et al.
v.
THE STATE.

55077.

Court of Appeals of Georgia.

Argued January 11, 1978. Decided February 9, 1978. Rehearing Denied February 28, 1978.

Jack H. Affleck, Jr., for appellants.

Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

WEBB, Judge.

Douglas Gordon and Mark Sanders, convicted of enticing a child for indecent purposes, insist on appeal that the verdict of guilty is not supported by the evidence. We agree.

The indictment charges the accused with enticing three girls under 14 years of age to a trailer home for the purpose of indecent acts. The evidence shows that the girls went of their own accord and without invitation. After their arrival the girls were exposed to explicit sexual tapes and one participated in indecent acts with Gordon, including sexual intercourse.

Although the evidence may have established a crime, it does not support a conviction for the crime with which Sanders and Gordon were charged. "A person commits enticing a child for indecent purposes when he solicits, entices, or takes any child under the age of 14 to any place whatsoever for the purpose of child molestation or indecent acts and upon conviction shall be punished by imprisonment for not less than one nor more than 20 years." Code § 26-2020.

The gravamen of the offense for which Gordon and Sanders were indicted was the enticing, luring or persuading of the young girls for immoral purposes. See Malden v. State, 87 Ga. App. 563, 564 (75 SE2d 30) (1953). The recitations of the sexual orgy and the audition of the sordid tape record, as repugnant as these acts were, did not establish the crime — enticing, luring or persuading for immoral purposes. We find no evidence to support a finding that the victims were enticed, invited to, or in any way persuaded by either Gordon or Sanders to come to the trailer. Prosecution and punishment for the acts committed indeed seem appropriate, but not by this indictment under the testimony adduced.

Judgment reversed. Quillian, P. J., and McMurray, J., concur.