
    JAMES A. FOSTER, plaintiff in error, v. THE STATE OF GEORGIA, defendant in error.
    (Atlanta,
    January Term, 1871.)
    INDICTMENTS—ADULTERY —DEMURRER. — Indictments for adultery, etc., under section 4460 of the Revised Code, cannot be found jointly against the man and the woman charged. And an indictment against both will be quashed on demurrer before trial.
    Indictment, Adultery, etc. Before Judge Harrell, Randolph Superior Court, May Term, 1870.
    The indictment charged that “the said James A. Foster, a married man, and said Nancy Bigby, being a single woman, on the 28th day of October, in the year 1869, and on divers other days and times before and since that time, in the county aforesaid, did, then and there, unlawfully, and with force and *arms, commit adultery and fornication, by then and there cohabiting and having sexual intercourse together and with each other,” contrary to the law, etc.
    Counsel for Foster moved to quash the indictment, because he was jointly indicted with another and not separately. The Court refused to quash iff A iurv was empanelled, Foster was tried and convicted. His counsel moved an arrest of judgment upon said ground and upon others not passed upon here. His refusal to quash the indictment or to arrest the judgment on said grounds, is assigned as error.
    Hood & Kiddoo, John T. Clark, for plaintiff in error,
    cited section 4460 of the Code.
    S. W. Parker, Solicitor General, by Newman & Harrison, for - the State.
    
      
      INDICTMENTS—ADULTERY.—-In Kendrick r/. State, 100 - Ga. 361, 28 S. E. Rep. 120, the court said: “If both parties to the criminal act are married, each is guilty of adultery; if both are single, each is guilty of fornication; if one is married and the other single, each is guilty of adultery and fornication. The act which is now embraced in the section quoted was construed as above indicated in the case of Wasden v. State, 18 Ga. 264, where it was held that a single person who had been guilty of illicit sexual intercourse with a married person was properly indicted for adultery and fornication. In the case of Foster v. State, 41 Ga. 582, it was held that a man and woman charged with one of the offenses named in this section could not be indicted jointly. While Judge McCay in the opinion does say, ‘One may be guilty of adultery and the other of fornication,’ the question of the form of the indictment was not involved in this case, except so far as related to the provision which required that the two offenders should be separately indicted. Therefore, there was nothing in Foster’s case which is in conflict with Wasden’s case.”
    
   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.  