This court certified to the Supreme Court of Georgia the following question: "Where the mother of a child under 18 years of age is awarded temporary custody of the child in a divorce and alimony proceeding filed by the mother of the child against the father of the child, is the father guilty of kidnapping the child under Code 26-1602 if the jury trying him under an indictment under said Code Section finds that he with force and arms fraudulently, maliciously and forcibly led, abducted, stole and carried away and enticed and carried away the child (alleged to have been kidnapped) from her mother, and against the will of the mother?" The Supreme Court answered this question in the negative. See Adams v. State, 218 Ga. 130 (126 SE2d 624).

Since the evidence shows that the defendant is the father of the child alleged to have been kidnapped by him, and at the time of the alleged kidnapping the mother of said child had been awarded temporary custody of the child by an interlocutory order granted in a divorce and alimony proceeding brought by the mother against the defendant, the court erred in overruling his motion for a new trial.

George Hains, Solicitor General, contra.