Kendrick v. State
1897 Ga. LEXIS 63, 28 S.E. 120, 100 Ga. 360 (1897)
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Rule of Law:
Under Georgia's Penal Code § 381, an indictment for a sexual offense must specify the correct crime based on the marital status of both parties (adultery, fornication, or adultery and fornication), and a conviction cannot be sustained if the evidence at trial proves a different offense than the one charged.
Facts:
- Kendrick was a married man.
- Lizzie Howard was a single woman.
- Kendrick and Lizzie Howard lived together.
- Kendrick and Lizzie Howard engaged in sexual intercourse with one another.
Procedural Posture:
- The State of Georgia brought an indictment against Kendrick in a state trial court.
- The indictment charged Kendrick with the offense of living in a state of adultery with Lizzie Howard, alleging both were married.
- At trial, the evidence established that Kendrick was married but Lizzie Howard was single.
- A jury found Kendrick guilty of adultery as charged in the indictment.
- Kendrick filed a motion for a new trial, which the trial court overruled.
- Kendrick (appellant) appealed the denial of his motion to the Supreme Court of Georgia.
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Issue:
Does a conviction for adultery violate the law when the indictment alleges both parties were married, but the evidence presented at trial shows that one party was single?
Opinions:
Majority - Justice Cobb
Yes. A conviction for adultery cannot be upheld when the proof establishes the distinct offense of adultery and fornication. The court reasoned that Penal Code § 381 creates three separate and distinct joint offenses based on the marital status of the participants: 1) adultery, when both parties are married; 2) fornication, when both parties are single; and 3) adultery and fornication, when one party is married and the other is single. Citing precedent from cases like Wasden v. The State, the court held that there was a fatal variance between the indictment, which charged adultery (implying both were married), and the evidence, which showed a married man and a single woman (the offense of adultery and fornication). Because the accused was convicted of a crime for which the evidence did not support a conviction, the verdict was contrary to law. The court also explicitly overruled the conflicting precedent set in Butt v. The State to resolve the ambiguity in the law.
Analysis:
This decision solidifies the principle that criminal indictments must be precise and that the prosecution must prove the specific crime charged. It clarifies that under the relevant Georgia statute, adultery, fornication, and the combined offense of adultery and fornication are not interchangeable terms but distinct legal wrongs, each defined by the marital status of the participants. By overruling a conflicting prior case, the court established a clear and binding precedent, emphasizing a defendant's due process right to be tried only for the specific offense alleged in the indictment. This holding forces prosecutors to be diligent in their investigation and charging decisions in such cases.
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