¶1dissenting. The accusation reads as follows: “That the said Fred W. Reddish in said County of Fulton, on the 28th day of August, 1957, did commit an act of notorious public indecency, tending to debauch the morals, in that he did expose the private parts of his person at a time when, and a place where, the said act was seen by Mrs. Edward Servell, and could have been seen by others, and the said Fred W. Reddish well knew at the time that he committed said act that it was public, notorious and indecent.”
¶2Code § 26-6101 makes it a misdemeanor to be guilty of “any notorious act of public indecency tending to debauch the morals.” To constitute the crime the act must be committed in a public place, and where two or more persons saw it or were in a position to have seen it if they had looked.” (Emphasis added). Wynne v. State, 65 Ga. App. 213 (15 S. E. 2d 623); Piercy v. State, 92 Ga. App. 599 (89 S. E. 2d 554). In Lockhart v. State, 116 Ga. 557 (42 S. E. 787), it was held: “It is at least necessary that it should be at a place that is for the time being open to a portion of the public as distinguished from a private room or dwelling whieh at the time is occupied by the inmates only.”
¶3While generally an indictment or accusation is sufficient as to place if it alleges that the venue of the offense is within the county, yet, if the offense can be committed only in a certain class of places, then it becomes necessary to allege the place of the offense so as to bring it within those places proscribed by statute, since otherwise no crime has been committed. For example, Code § 58-608 makes public drunkenness an offense, the *764place where the offense is committed being material thereto-, and one could neither be indicted nor convicted for drunkenness committed elsewhere. “ ‘The place where the-drunken, condition exists is no. less essential, to .the offense. . . . than the condition itself, drunkenness becoming an indictable offense only when the drunken person appears at some-one or more of the places 'specified in the statute. Burkes v. State, 7 Ga. App. 39 (65 S. E. 1091); Hutchinson v. State, 8 Ga. App. 684 (2) (70 S. E. 63); James v. State, 28 Ga. App. 713 (113 S. E. 26).’ Thomas v. State, 33 Ga. App. 134 (135 S. E. 778).’ Laboon v. State, 84. Ga. App. 784 (1). (67 S. E. 2d 149). Where the indictment fails to specify the place except by the general terms, of the statute, it is too vague and indefinite to enable the accused, to prepare.for his defense. Burkes v. State, 7 Ga. App. 39, supra.
¶4This indictment not only fails to allege, specifically the place where .the act occurred and that it was a public. place; it fails to- allege even .generally-that it occurred in a public place, except by the general statement that the defendant knew the act to be public, notorious and indecent. -This is, of course, no allegation of place or -that the State charges the place was a public place. Where, before trial, the accusation is attacked by special demurrer, the defendant is entitled to-be tried on an indictment perfect in form as to the essential elements of time and place. Adkins v. State, 103 Ga. 5 (29 S. E. 432); Bailey v. State, 65 Ga. 410. As stated in the Burkes. case, supra, where the place is of this character, so as to be a necessary ingredient of the offense, and the indictment does not so allege, a demurrer on the ground that the indictment “fails to apprise defendant with sufficient definiteness to enable him to prepare for trial-.as to what public street or highway he is charged with having appealed” is a good demurrer because the indictment “is too vague and indefinite to enable the accused to prepare for his defense.” This indictment points its finger at the very question by the statement that “there, is no statement. of place, and both [time- and place] are essential to the preparation and trial of the case on behalf of the defendant.” Granting that the words used differ somewhat from tho'se in -the Burkes case, the *765meaning is the same. The defendant says that for him to- prepare his case, that is, his defense, he must know the place where he is charged with having committed the crime; that the place is essential, and that there is no statement of place in .the accusation. All this is true, and it raises for determination the question of whether the State in this particular case must allege the place where the offense- was committed. .It is accordingly my opinion that the demurrer is -sufficient to raise the question for.consideration by this court as to whether the State has alleged a place where the crime was committed sufficiently to enable the defendant to prepare his defense. If any place within the county would be sufficient, then the State has alleged a place. If, however, as I have endeavored to show, the State cannot allege a crime without alleging a place which is a public place within the meaning of the Wynne.and Piercycases, then the State has not alleged a place and the demurrer pointing out this defect is good-. • •
¶5I am authorized to say that Felton, C. J., and Nichols, J., concur in this dissent. •