
    15698.
    Richardson v. The State.
    Decided August 8, 1924.
    Indictment for adultery arid fornication; from Crawford superior court — Judge Malcolm D, Jones. May 17, 1924.
    The indictment-alleged that W. T. Richardson, a married man, had unlawful sexual intercourse with Mrs. Joyner, a widow. Hendricks Yaughn testified in part as follows: “I have seen the defendant at Mrs. Joyner’s house a good many times; he is there-pretty regular. On or about Christmas eve . . I saw the defendant at Mrs. Joyner’s house at night. . . Henry Proctor was with me. . . It was between 10 and 11 o’clock at night the defendant went to Mrs. Joyner’s house. There was a path that went through the yard at the back of the house, and he was coming down the path. . . He went in the room where a fire was. I saw Mrs. Joyner come out of the room whére the fire was and went in a little shed-room at the far end of the house, on the porch. She had on her top clothes. The defendant and Mrs. Joyner kinder went in the little room together. . . I then went under the house, under the shed-room in which they went, and remained there fifteen or twenty minutes. While under the room I could hear a movement of the bed in the room; I heard the bed making a fuss. At that time I had not seen the defendant and Mrs. Joyner come out of the room. I heard the springs of the bed making a fuss; I don’t know hardly how to describe it; the springs were making a fuss like they wore going up and down. Henry Proctor rvas under the house Avitli me at the time. We stayed under the house until Ave got pretty cold, and I got a stick and hit the side of the room, and they came out. I didn’t see them' come out, but heard them. We then went on off. . . I did not see the defendant any more that night. . . There was a baby in the room crying that night, and I got after the defendant about the baby crying, and he said he didn’t know anything about it, and he asked me what baby it Avas, and I told him he knew, and we talked on, and he says, ‘Boys, stop that now and not talk about that any -more.’ He did say if he had had his pistol he would have killed somebody out about the well. I didn’t go to the well. I suppose Mr. Eichardson was- living with Mrs. Eichardson at that time. . . Mrs. Joyner was a widow at that time. . . As far as I know, Mrs. Joyner’s girls and boys were in the house that night. . . I don’t know but that it was the children going to bed that made the bed-springs go up and down. I don’t know whose room that was.” Henry Proctor testified that he was with Hendricks Yaughn at the time mentioned by that witness, and that the defendant went in a little shed-room in Mrs. Joyner’s house, and he “could hear them talking in the room;” that he and Yaughn “stood up side of the house,” but he did not know whether either himself or Yaughn went under the room, and he did not know whether he heard a bed or not; he did not remember hearing a bed; that Yaughn hit the side of the.house with a stick, and “they came out of the room;” that he did not see them come out, but heard them, — heard two come out of the room, and then he (the witness) and Yaughn went home. He testified also: “I did not see any light in the little shed-room. I do not think there Avere any glass windows to the room. When they went in the little room we were coming up on the front side of the house. We were where we could see them. There was a light in the big house, but don’t remember seeing any in the little shed-room. . . Mrs. Joyner’s children were living with her. Her oldest son was nearly grown at the time. . . I cannot say what occurred in the house. I cannot say who was in the room with them.”
   Bkoyles, C. J.

The evidence raised a strong suspicion of the defendant’s guilt, but was not sufficient to authorize his conviction, and the court erred in overruling his motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur..

Another witness testified that when riding in a buggy on a public highway in the daytime he saw the defendant in the woods with Mrs. Joyner, where they were putting up a pasture fence, about two or three hundred yards from her house. “Mrs. Joyner 'was leaning back under some bushes, lying down, leaning back. It looked like Mrs. Joyner was on the ground, up under a bush. There was a little skirt of woods there. They were by themselves. The boys were about 150 yards from them; the woods were between them and the boys; the boys were putting up a fence, — Mrs. Joyner’s boys. Mrs. Joyner’s clothes were about her knees. When I first saw the defendant he was standing up. I saw him just as he was getting up. It looked like he got up from just about where she was at under those bushes. . . The women wore their dresses pretty short at that time. . . The defendant got up from about where she was at and come out and went to packing dirt around the posts. . . I guess that anybody that had eyes could have seen them. . . I cannot say whether Mrs. Joyner’s clothes were short or turned up, but I know they were just about to her knees. . . I have seen her with short dresses.”

Another witness testified that he had seen the defendant sitting in Mrs. Joyner’s lap in a single-seat Ford car driven by her son, who was more than twenty years old, and he “didn’t think anything of it;” he had seen men and women riding that way before. The defendant, in his statement at the trial, denied that he ivas guilty.

Citations by counsel: 14 Ga. App. 441 (1); 15 Ga. App. 487; 16 Ga. App. 218. See 30 Ga. App. 10.

W. D. Aultman, W. 0. Cooper Jr., for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.  