The accused was convicted under an indictment, charging him with the offense of fornication. There was no evidence showing that either he or the female with whom the cmm*15inal act was alleged to have been committed was unmarried at. the time the offense was committed. There is no presumption of law or of fact that a given person is married or single, but this is a matter which must be established by evidence whenever it is material. It being essential, to authorize a conviction for fornication, that both parties to the criminal act should be unmarried,, it is incumbent upon the State to establish this fact by competent evidence. Bennett v. State, 103 Ga. 66. The record in the present case failing to disclose that either of the parties was unmarried, the conviction was unwarranted, and the court should have granted a new trial.
Judgment reversed.
By five Justices..