Opinion
39091.
DECIDED DECEMBER 5, 1961.
Abandonment of child. Catoosa Superior Court. Before Judge Fariss.
Stafford R. Brooke, for plaintiff in error.
Earl B. Self, Solicitor-General, contra.
"In a prosecution of a father for the offense of abandoning his minor child and leaving it in a dependent condition, the venue of the offense is in the county where the state of the child's dependency upon others began on account of the father's failure to support the child. Cleveland v. State, 7 Ga. App. 622 ( 67 S.E. 696), and cases cited." Rogers v. State, 27 Ga. App. 180 (1) ( 107 S.E. 889).
DECIDED DECEMBER 5, 1961.
The defendant was convicted of abandoning his minor child. The wife of the accused testified: "I live with my mother and daddy. I have been living with them since . . . I left him, and that was right after New Year's, of `60. . . I am married to John Albert Fairbanks. As a result of that marriage there is one baby, Margaret Amanda Fairbanks. She will be nine months old the seventeenth of this month. I have that child at the present time. . . John and I were married on the 24th day of September, 1959. We got married down here in Ringgold. After we married, we lived with my sister, Mildred, in Decatur, Tennessee. I was up there, I guess five months. How come me to leave up there, I was trying to get me a place, and he wouldn't do it, and he said that he wasn't going to leave, I asked him two or three times to do it and he said he wouldn't do it, and I told him I would give him three weeks to get me a place, and during that whole three weeks he didn't do anything, it was during the holidays, and he would go out and sometimes Mildred would go with him, and they would come back sometime about three o'clock, and he would be drunk; he wasn't trying to get me a place, and there I was going to have a baby, and I didn't have a piece of clothes for it, and I had to do something, so I left him and come home. That staying out is the reason I came home, and that he wouldn't get me a place; . . . Mildred was good to us, . . . but we lived in Mildred's house, and eating her food, that she bought, and sleeping in Mildred's bed . . . He worked a little while after we got married. As far as I know, he is able to work. When I left him, I came home to my mother and daddy. I later bore him a child. . . . That child was born at Dr. Stephenson's clinic here, in Catoosa County. He [the accused] has not done anything for the support of that child since it was born. He has not even saw it until last Monday; and I don't even know that he looked at it then or not, . . . As far as I know, he just paid ten dollars on the delivery of that child . . . As to how I have been supporting the child, before I swore out the warrant for John, I am getting welfare now, but before I did, my mother and daddy helped me, and I took in washing. I say that he has not done anything for the child since it has been born. I was pregnant when we got married, and he know it; and it looks like that if he is man enough to admit it, that he would be man enough to see to it that she is raised right. He said that he knows it is his child; but after we were married, he wouldn't talk to me, some days, and on other days he would talk to me and say that he know that it was his baby and that he know that everybody was against us, and that we would pull together and stand up before all of them."
Dr. C. W. Stephenson, who attended the defendant's wife at the birth of the child, testified that prior to its birth, the defendant paid him ten dollars on the delivery fee. He further testified that the defendant had paid no other amount for his services.
The defendant did not make a statement to the jury in his defense.
The jury found the defendant guilty. The defendant filed a motion for a new trial which was overruled. From this ruling the defendant appealed.
Code Ann. § 74-9902 provides in part: "If any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, he or she, as the case may be, shall be guilty of a misdemeanor."
"There are two elements in the offense of abandonment of child: (a) desertion, that is, the wilful forsaking and desertion of the duties of parenthood; (b) dependency, that is, leaving such child in a dependent condition. Both elements must be present to complete the offense." Blackwell v. State, 48 Ga. App. 221 ( 172 S.E. 670). To the same effect see Funderburk v. State, 91 Ga. App. 373 ( 85 S.E.2d 640); Glad v. State, 85 Ga. App. 312 ( 69 S.E.2d 699); Bowling v. State, 62 Ga. App. 540 ( 8 S.E.2d 697); Brock v. State, 54 Ga. App. 403 ( 187 S.E. 906); Brock v. State, 51 Ga. App. 414 ( 180 S.E. 644).
Code Ann. § 74-9902 further provides in part: "A child . . . abandoned by the father or mother shall be considered to be in a dependent condition when the father or mother charged with the offense does not furnish sufficient food and clothing for the needs of the child." See York v. State, 52 Ga. App. 11 ( 181 S.E. 870).
If a father wilfully forsakes his parental duties to support his minor child, regardless of whether the separation of the father from his child resulted from fault of the father or was brought about by actions of another person or persons unconnected with any action of the father, and his child becomes dependent upon persons other than the father, the crime of abandonment as against him is complete. See Brown v. State, 122 Ga. 568 ( 50 S.E. 378). Cf. Glad v. State, 85 Ga. App. 312, supra; Funderburk v. State, 91 Ga. App. 373, supra.
Decisions of this court clearly support the above conclusion. This court held in Moore v. State, 1 Ga. App. 502, 504 ( 57 S.E. 1016): ". . . [I]t is no defense, to a prosecution for abandonment of the child, that the mother has deserted the father, or even if she be guilty of the grossest immorality or unwifely conduct. The child is not responsible for, or to be abandoned because of, misconduct of the wife and mother." See also Chandler v. State, 38 Ga. App. 362 ( 144 S.E. 51).
Parrish v. State, 10 Ga. App. 836 (2) ( 74 S.E. 445), held: "The conduct of the child's mother, or her refusal to live with its father as her husband, is no defense to a prosecution for abandonment of the child. The father must support his child, whether it lives with him or with the mother; and if he desires the custody of the child, he must pursue his remedy to obtain its custody." See also the cases cited therein, and Cannon v. State, 53 Ga. App. 264 ( 185 S.E. 364).
Anything said in Beasley v. State, 54 Ga. App. 544 ( 188 S.E. 543); Bowling v. State, 62 Ga. App. 540, supra; and Carroll v. State, 62 Ga. App. 539 ( 8 S.E.2d 693), which may appear to be in conflict with Moore v. State, 1 Ga. App. 502, supra, and Cannon v. State, 53 Ga. App. 264, supra, will not be followed as we are bound by the older decisions of this court.
"That a father begins to abandon his child some months before it is born, will not excuse him for persisting in the abandonment and failing to furnish it with the necessaries of life [after its birth]." Bull v. State, 80 Ga. 704, 705 ( 6 S.E. 178). See Bailey v. State, 214 Ga. 409 ( 105 S.E.2d 320); Phelps v. State, 10 Ga. App. 41 ( 72 S.E. 524); Smith v. State, 42 Ga. App. 419 ( 156 S.E. 308); Campbell v. State, 20 Ga. App. 190 ( 92 S.E. 951).
Where, as in this case, a wife, because of the failure of her husband, father of her unborn child, to properly support her and on account of his misconduct, was justified in leaving him, and after the birth of the child, the father wilfully failed to furnish it with the necessities of life, and the child became dependent upon persons other than the father, the offense of abandoning his minor child became complete, and the proof of such facts authorized his conviction. Daniels v. State, 8 Ga. App. 469 ( 69 S.E. 588).
The defendant contends that venue in this case was not in Catoosa County. The general grounds of a motion for a new trial raise the question of venue. Parks v. State, 212 Ga. 433 ( 93 S.E.2d 663).
In Georgia the venue of a prosecution for the offense of abandonment is in the county where the minor child first becomes dependent upon persons other than the parent for support. Boyd v. State, 18 Ga. App. 623 ( 89 S.E. 1091); Rogers v. State, 27 Ga. App. 180, supra; Nelson v. State, 77 Ga. App. 255 ( 48 S.E.2d 570). See 44 ALR2d 886. This is true regardless of where the abandonment (desertion) may have had its beginning, because the crime is consummated at the place where the child becomes dependent upon persons other than the parent. See Cleveland v. State, 7 Ga. App. 622 ( 67 S.E. 696); Nunn v. State, 39 Ga. App. 643 ( 148 S.E. 165); Sikes v. State, 37 Ga. App. 164 ( 139 S.E. 87); Bradley v. State, 52 Ga. App. 203 ( 182 S.E. 821); Garrett v. State, 41 Ga. App. 545 ( 153 S.E. 628); Bennefield v. State, 80 Ga. 107 ( 4 S.E. 869).
This case is distinguishable upon its facts from Jemmerson v. State, 80 Ga. 111 ( 5 S.E. 131); Turner v. State, 56 Ga. App. 488 ( 193 S.E. 78); and Weltzbarker v. State, 89 Ga. App. 765 ( 81 S.E.2d 301). In each of these cases the facts therein show that the crime of abandonment was consummated at a place other than in the county where the prosecution was instituted. Cf. Garrett v. State, 41 Ga. App. 545, supra, and York v. State, 52 Ga. App. 11, supra. 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.
The venue of the prosecution was properly laid in Catoosa County, Ga. The evidence amply supports the verdict of guilty, and the court did not err in overruling the defendant's motion for a new trial.
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.