dissenting.
This Court is, I think, committed to the position that the facts set out in this indictment, constitute, under the statute, the offense of “ fornication and adultery,” and not the offense of fornication. I do not, therefore, put my dissent on the ground that the facts stated do make a case of fornication. My judgment is, that the indictment sets forth all the facts necessary to constitute an offense by the laws of Georgia. It charges that on a certain day, in a certain county, the defendant being then and there an unmarried woman, did have carnal connection with James Foster, a married man. Under section 4458 of the Code, this constitutes a crime, for which the section fixes a penalty. The Code gives no “name” to this offense ; it simply says, that any man and woman, who shall commit adultery, or fornication, or adultery and fornication, shall be,” etc. It does not *347say that any person doing certain acts shall be guilty of “fornication,” etc., but any man and woman who shall commit an act of fornication, etc., shall be punished, etc. Suppose a statute were to say, that any man who shall, unlawfully, beat another, shall be punished, etc? Would not the indictment be good which set forth the time and place and facts of beating, and would it make any difference whether the pleader called it a misdemeanor, assault and battery, beating, or what not? I think not. That part of this indictment which charges the defendant with fornication, generally, is merely formal. The pleader might have charged her with a misdemeanor, and any other thing which would be a general description of the offense, or he might have left out that part of the indictment altogether. He might have merely said, charge and accuse......*.., that the said ......... did, on ..., and at ..., she being, etc., have carnal connection, etc. The law gives no name to the offense, and it was unnecessary and mere surplusage to name it. The offense consists in the acts charged, and they are left undefined by the Code. I think this indictment conforms to the requirements of section 4535 of the Code. It sets forth the offense charged in the language of the Code, and is sufficient.