
    17564.
    Johnson v. The State.
    Decided November 9, 1926.
    Certiorari; from Fulton superior court — Judge E. D. Thomas. May 20, 1926.
    
      G. II. Cornwell, P. W. Flint, for plaintiff in error.
    
      Roy Borsey, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.
    Criminal Law, 16 C. J. p. 273, n. 24, 25; p. 274, n. 62 New.
   Broyles, C. J.

1. A former acquittal of the charge of public indecency will not bar a prosecution for being drunk at a place of public gathering or assembly. This is true although the evidence for the State may be the same in both cases. The offenses 'are separate and distinct. The evidence necessary to convict one of public indecency would not necessarily be sufficient to convict him of being drunk, and vice versa. “The true rule is, if the evidence required to convict under the first indictment would not be sufficient to convict under the second indictment, but proof of an additional fact would be necessary to constitute the offense charged in the second, the former conviction or acquittal could not be pleaded in bar to the second indictment.” Blair v. State, 81 Ga. 629 (2 a) (7 S. E. 855); Collier v. State, 8 Ga. App. 371 (2) (69 S. E. 29).

2. The court did not err in overruling the certiorari.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.  