
    645.
    Murray v. The State.
    Indictment for fornication, from Stephens superior court— Judge Kimsey. June 7, 1907.
    Submitted October 7,
    Decided October 14, 1907.
    Corrie Murray was convicted under an indictment charging her with having committed fornication with Will Price. She excepted to the, overruling of her motion for a new triál, alleging that the verdict was without evidence to support it. The only testimony introduced, to prove the alleged offense, was that of John Stephens, who testified as follows: “On December 26, 1906, I went to Corrie Murray’s father’s (George Murray’s) here in Toccoa, . . about sun up. No one was up. I married Cor-Tie’s sister, and went there to get Corrie’s mother, Mrs. Murray, to go and wait on my wife, who was sick. Mrs. Murray got up and opened the door for me, and began to make a fire. She had slept in the front room, her husband being away from home, I went in and sat down in front of the fireplace, with my back towards the door leading into the adjoining room. In a few minutes Corrie Murray came in. I do not know what room she came from, or where she came from. She came up from behind me. She had on only a thin guaze, thrown over her shoulders. In a few minutes Will Price came in, sat down, and I noticed that he was fastening his shoes as if he was just finishing dressing. He came up from my rear, but I do not know where he came from. There were three rooms in the house, — the one occupied by Mrs. Murray, which I was sitting in, .the cook-room, and the room in the rear, from the direction of which both Corrie Murray and Will Price came. I didn’t see either of them come out of the room, because my back was turned. They did not come out of the cook-room, and there was no other place for them to have come from, except from the rear bedroom. Neither Corrie Murray nor Will Price have ever been married. Will Price lives here in Toccoa. I saw no one there except Mrs. Murray, Will Price, and Corrie Murray, and some children. The house was pretty full of children.”
   Hill, C. J.

No fact or circumstance in the evidence raised a reasonable inference of guilt. The hypothesis of guilt was entirely hypothetical, and was fully overcome by positive testimony and several reasonable hypotheses of innocence. The verdict, being wholly without support of evidence, is without foundation of law, and the refusal to grant a new trial was error. Judgment reversed.

Cynthia Hanie testified, that she and her sister Corrie (the accused) slept in the same bed, in the back room of their mother’s house, in the night “about last Christmas,” when Will Price was there; that he was visiting Corrie that night, but did not and could not come into the room in which she and Corrie slept; that while Corrie was in the room the only door of the room was fastened; that their mother slept in the front room, and Will slept with the children in the middle room; that Corrie, in going to the back room, to go to bed, passed directly through the room in which Will afterwards slept, and did not leave the back room until she heard John Stephens knocking the next morning, and then she went at once into her mother’s room without stopping. The statement of the accused was to the same effect. Witnesses’ for the State testified that the general character of Cynthia Hanie was bad, and they would not believe her on oath.

Fermor Barrett, R. A. Naves, for plaintiff in error.

W. A. Charters, solicitor-general, contra.  