Annie Harris was convicted in the recorder’s court of Atlanta of the offense of “disorderly conduct;” and her certiorari was overruled by a judge of the superior court.
Section 874 of the city code of Atlanta provides as follows: “Any person who shall, within the corporate limits of Atlanta, be guilty of an act of public indecency, tending to debauch the morals of any of the citizens, or of quarreling, or of using obscene, vulgar or profane language, or of malicious mischief, or otherwise act in a disorderly manner (which offense is not recognized as penal by laws of this State). shall, on conviction, pay a fine not exceeding one hundred dollars and costs, or be imprisoned in the station-house not more than thirty days, in the discretion of the recorder’s court.”
The evidence, as shown by the recorder’s answer to the writ of certiorari, disclosed that at about three a. m. on November 15, 1942, policemen found the defendant and a soldier in a bed in a hotel room. There was no evidence that she was quarreling, or using *24obscene, vulgar, or profane language, or committing malicious mischief, or that she was guilty of an act of public indecency. Under the evidence, if she was guilty of any offense, it was. either fornication or adultery, and these offenses are punishable only by the laws of this State. It follows that her conviction was contrary to law, and that the court erred in overruling her certiorari.
Judgment reversed.
MacIntyre and Gardner, JJ., concur.