Summary
In Glad v. State, 85 Ga. App. 312, supra, and Funderburk v. State, 91 Ga. App. 373, supra, the evidence did not show that the father had deserted his children within the meaning of the abandonment statute.
Summary of this case from Fairbanks v. StateOpinion
33803.
DECIDED FEBRUARY 19, 1952.
Abandonment of child, certiorari; from Fulton Superior Court — Judge Shaw. August 10, 1951.
Pool, Pearce Hall, William F. Lozier, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, C. O. Murphy, B. B. Zellars, contra.
There are two elements in the offense of abandonment of minor children, to wit: (1) desertion, that is, the wilful forsaking and desertion of the duties of parenthood; and (2) dependency, that is, leaving such children in a dependent condition; and before one can be convicted of this offense under the provisions of Code § 74-9902, both of these elements must occur and take place in this State.
DECIDED FEBRUARY 19, 1952.
On October 11, 1950, Phillip S. Glad was tried in the Criminal Court of Fulton County upon an accusation charging him with abandoning his two minor children, Patricia Ann Glad and Phillip S. Glad Jr. The trial resulted on October 13, 1950, in a verdict finding the defendant guilty, and he was accordingly sentenced to serve 12 months on the public works. The defendant, within due time, petitioned the Superior Court of Fulton County for a writ of certiorari, alleging in his petition that he had been so tried and convicted, and setting up the facts herein set forth. The defendant assigned error on his conviction and upon the verdict, judgment, and sentence, as being contrary to law and to the evidence. On the trial there was evidence to the effect that the defendant, some years ago, had abandoned his two minor children in the State of Connecticut; that thereafter he was apprehended and returned to that State and tried and convicted of abandonment; that thereafter he paid to his former wife $15 weekly for the support of the two children; that the defendant moved to Georgia, and started life anew; that in 1947 he ascertained that his two children were living in Florida, and he visited them and discovered that they were living in a trailer, together with their mother and stepfather; that the defendant, with the mother's consent, took his daughter, Patricia, then 17 years old, back to Georgia with him and placed her in high school, and after she finished high school, he placed her in the Atlanta Division of the University of Georgia, supported her, and thereafter sent his former wife only $7.50 to support the son; that later the son came to Georgia and to his father's home; that both of these children resided in the home of their father, with his present wife, and two infant children, and he cared for them and supported them; that the daughter got "mad" with her father and returned to live with her mother, who in the meantime had separated from her husband in Florida and had come to Atlanta, Georgia, where the defendant had moved from Marietta; that the son also became dissatisfied and left his father's home; that the defendant did not begin sending the $15 weekly to his former wife, claiming that he did not know where they resided; and that the mother of the alleged abandoned minors swore out an accusation against their father, charging him with abandonment. It does not appear that the defendant deserted these children in Georgia, although it does appear that he failed to support them after they left his home.
In the view which we take of this case, it is not necessary to go into all of the evidence or to elaborate further on the facts. In fact, much of the evidence was not pertinent to the issues raised by the defendant's plea of not guilty to the charge of abandoning these children. At the time of the alleged abandonment, it appears that Patricia Ann was over 20 years old, and the boy over 17 years of age, and both were permitted to work and retain their wages for their own use, aside from the support furnished by the father.
In connection with the above, the defendant contends that the verdict was not authorized, in that there was no evidence that he had actually deserted these children in Georgia, and thus the essential element necessary to constitute the offense of abandonment of minor children was lacking, namely the desertion.
Code § 74-9902 provides: "If any father shall wilfully and voluntarily abandon his child, leaving it in a dependent condition, he shall be guilty of a misdemeanor." Therefore, to constitute abandonment and to render valid the defendant's conviction thereof, two material facts must appear: (1) that the father wilfully and voluntarily abandoned or deserted the child, and (2) that the child was left by reason thereof in a dependent condition. See Blackwell v. State, 48 Ga. App. 221 ( 172 S.E. 670). It has been held that, where the father deserted the children in a State other than Georgia and the mother thereafter brought the children into Georgia, where the defendant father also resided, and the children while here were in a dependent condition, such father could not be properly charged with and convicted of abandonment under Code § 74-9902, for the reason that the act of the father's desertion, and the dependency of his child must occur in this State. See Jemmerson v. State, 80 Ga. 111 ( 5 S.E. 131). It appeared from the record that the defendant father deserted his children in Connecticut, leaving them there and they became dependent; that he was later returned to that State for trial and was convicted therein of abandonment; that thereafter he came to Georgia, where he married again, changed his name, and became the father of two other children; that he sent $15 a week to his former wife for the support of the two children involved here; that he went to Florida, where he discovered that his former wife, her husband, and his two children were living in a trailer, and he brought the elder child, Patricia, back to Georgia with him, placing her in school and taking care of her; that he sent only $7.50 per week to the former wife for the boy's support; that later the other child came to Georgia and lived with him, and was supported by his father; and that thereafter these children became dissatisfied with living with their father and voluntarily left his home to live with their mother, who had separated from her second husband and followed the children to Atlanta, Georgia. Therefore, the evidence discloses that there was no concurrence of the two essential elements in this State, to wit, desertion and dependency, necessary to constitute abandonment under said Code section. Furthermore, the desertion took place in Connecticut, while the failure of the defendant to provide for the children, after they left his home voluntarily, took place in Atlanta, Georgia. Again, it appears that there has been a previous conviction of the father for deserting his children. See Gay v. State, 105 Ga. 599 ( 31 S.E. 569); Phelps v. State, 10 Ga. App. 41 ( 72 S.E. 524); Brock v. State, 51 Ga. App. 414, 418 ( 180 S.E. 644); s.c. 54 Ga. App. 403 ( 187 S.E. 906).
Nothing ruled here is contrary to the holding in Cannon v. State, 53 Ga. App. 264, 266 ( 185 S.E. 364), that "The father must support his child whether it lives with him or with the mother," and similar cases. The question here presented was not for decision in such cases as King v. State, 12 Ga. App. 482 ( 77 S.E. 651) and Ozburn v. State, 79 Ga. App. 823 ( 54 S.E.2d, 376).
The evidence here demands a finding that the father did not separate from these children in Georgia, but that they voluntarily left him. The evidence demanding a verdict for the defendant, it was error to deny the defendant's petition for certiorari.
It follows that none of the special assignments of error are necessary to be passed upon. The judgment of the superior court denying the petition for certiorari was contrary to law, and reversible error.
Judgment reversed. MacIntyre, P.J., and Townsend, J., concur.