Foster v. State

41 Ga. 582

• Court: Supreme Court of Georgia
• Decided: January 15, 1871
• Status: Published

Opinion

McCAY, J.

Section 4460 of the Revised Code, prescribing the penalty for adultery and fornication, or adultery or fornication, distinctly provides that the defendants shall be “severally” indicted. It is a distinct offense in each. In fact, one may be guilty of adultery and the other of fornication; and though the punishment is the same,- yet the law, as well as the lexicographers, 'give a distinct name to each offense. Indeed, the moral guilt of the one married is greater than that of the one unmarried. Whether the distinct provision of the Code requiring several indictments is wise or not, is immaterial. “Ita lex scripta est,” is sufficient.

Nor is the waiver of an indictment a waiver of this objection. The presentment must also be several. The form in the Code is the same, whether the grand jury indict or present: Section 4535, Revised Code. We think the demurrer ought to have been sustained.

Judgment reversed.