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ON MOTION I?OK REHEARING.

Conceding, for the sake of the argument, that under the decisions cited by counsel for the plaintiff in error, Zachery v. State, 6 Ga. App. 105 (64 S. E. 281), and Craft v. State, 13 Ga. App. 79 (78 S. E. 776), the evidence in the record was not sufficient to show that the accused was a married man at the time he induced the girl to go away with him, still proof that the defendant was a married man was not an essential part of the State’s case. The .gist of the offense was the fraudulent intent by which the accused enticed the girl away. It was immaterial whether he was in fact married. The evidence shows that he induced the girl to go away with him under* a false and fraudulent promise of marriage, and that after having so enticed her away he had sexual intercourse with her and refused to comply with his promise of marriage. The reason for his refusal is immaterial, nor is it important if the reason he assigned was untrue. She says the reason he gave for not complying with his *53promise of marriage was that he was already a married man, a fact which he claims to have forgotten when he enticed the girl away. The trial judge instructed the jury upon the theory that they might consider whether or not the accused was a married man. This was really more favorable to him than he was entitled to, because under the testimony of the girl he would still be guilty although the jury might find that he had never been married.

Rehearing denied.

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