Opinion
20790.
SUBMITTED FEBRUARY 8, 1960.
DECIDED MARCH 15, 1960.
Abandonment of minor child. Bartow Superior Court. Before Judge Davis. November 16, 1959.
Harry T. Lawrence, for plaintiff in error.
R. F. Chance, Solicitor-General, contra.
1. It was proper to overrule the demurrer to the indictment which contended that the act of 1956 (Ga. L. 1956, p. 800), amending Code § 74-9902, violates stated provisions of the Constitution.
2. It was error to overrule the special demurrers to the indictment, since the indictment did not plainly show the nature of the charge against the accused.
SUBMITTED FEBRUARY 8, 1960 — DECIDED MARCH 15, 1960.
At the August term, 1959, of Bartow Superior Court, the grand jury returned an indictment against Harold Pasley, charging him as follows: "In the name and behalf of the citizens of Georgia, charge and accuse, Harold Pasley, with the offense of misdemeanor. For that the said Harold Pasley on the 1st day of June in the year Nineteen Hundred and Fifty Nine, in the county aforesaid, did then and there, unlawfully and with force and arms, wilfully and voluntarily abandon his minor child, to wit, Deborah Elizabeth Collins, leaving it in a dependent condition, Contrary to the laws of said State, and the good order, peace and dignity thereof."
The defendant demurred generally to this indictment upon the ground that the allegations therein are insufficient to charge him with any offense under the laws of this State. He demurred to the indictment specially upon the ground that it fails to allege the necessary ingredients of the crime alleged to be committed by him, as required by Code § 74-9902 as amended; and upon the ground that "there is not enough alleged therein to show that the child named therein is his child under any conditions, since the child named is Deborah Elizabeth Collins and this defendant's name is Harold Pasley, and therefore without further averments of fact, this defendant could not be guilty of the offense charged for a child with another surname other than his."
The defendant filed a separate demurrer to the indictment on the ground that the amendment of 1956 (Ga. L. 1956, p. 800) to Code § 74-9902, making it a crime to abandon an illegitimate child, violates Art. I, Sec. I, Par. II of the Constitution of the State of Georgia (Code § 2-102), "as this said amendment is unreasonable, arbitrary and discriminatory as Code Section 74-203 gives the mother of an illegitimate child absolute possession of said child, and one can not abandon that which he can not by law possess."
The trial judge overruled the demurrers to the indictment, and the exception is to this order.
1. There is no merit in the contention made by the demurrer that the act of 1956 (Ga. L. 1956, p. 800), amending Code § 74-9902, offends Art. I, Sec. I, Par. II of the Constitution (Code § 2-102), which is as follows: "Protection to person and property is the paramount duty of government, and shall be impartial and complete." The "abandonment" contemplated by Code § 74-9902 as amended is defined therein as the failure to "furnish sufficient food and clothing for the needs of the child." The father of an illegitimate child has the duty under our law to support his illegitimate child. Code § 74-202. It is true that the mother is entitled to the possession of such child, unless the father legitimates the child. Code § 74-203. However, the amendment to Code § 74-9902, which makes it a crime for the father to fail to support his illegitimate child, is not unreasonable, arbitrary, or discriminatory against him because he does not have the right of custody, since the duty of a father to support his legitimate child is not dependent on his right of custody. Parrish v. State, 10 Ga. App. 836 (2) ( 74 S.E. 445); Dyer v. State, 87 Ga. App. 440 (2) ( 74 S.E.2d 129); Hunt v. State, 93 Ga. App. 84 ( 91 S.E.2d 133); Waters v. State, 99 Ga. App. 727 ( 109 S.E.2d 847).
2. The word "child" used in a statute, will, deed, or other conveyance generally means a legitimate child, unless the context shows a different meaning, or the circumstances surrounding the execution of a paper are such as to make the words include an illegitimate child. Hicks v. Smith, 94 Ga. 809 ( 22 S.E. 153); Floyd v. Floyd, 97 Ga. 124 ( 24 S.E. 451); Johnstone v. Taliaferro, 107 Ga. 6 ( 32 S.E. 931, 45 L.R.A. 95); Robinson v. Ga. R. Bkg. Co., 117 Ga. 168 ( 43 S.E. 452, 60 L.R.A. 555, 97 Am. St. Rep. 156); Brinkley v. Dixie Construction Co., 205 Ga. 415 ( 54 S.E.2d 267); Wilson v. Ingram, 207 Ga. 271 ( 61 S.E.2d 126).
Originally, under the statute (Code of 1933, § 74-9902), the offense of abandonment applied only to the father of a minor child, and under this statute it was held by the Court of Appeals that the term "child" used in an accusation for the abandonment of a child imported a legitimate child. Rimes v. State, 7 Ga. App. 556 ( 67 S.E. 223); Woodard v. State, 18 Ga. App. 59 ( 88 S.E. 825). By an act of 1946 (Ga. L. 1946, p. 63), § 74-9902 was amended to include the mother. Thereafter, it was held by the Court of Appeals that the abandonment statute related to the parents of legitimate children only. Mangum v. State, 91 Ga. App. 556 ( 67 S.E. 223); Woodard v. State, 18 Ga. App. 59 ( 88 S.E. 825). By an act of 1946 (Ga. L. 1946, p. 63), § 74-9902 was amended to include the mother. Thereafter, it was held by the Court of Appeals that the abandonment statute related to the parents of legitimate children only. Mangum v. State, 91 Ga. App. 520 ( 86 S.E.2d 365). By the amendment of 1956 (Ga. L. 1956, p. 800), § 74-9902 was further amended to include the father and mother of a child, "either legitimate or illegitimate."
While the offense of abandonment may now be committed by either the father or the mother of a child, legitimate or illegitimate, the indictment should plainly show the relationship of the accused to the child, which is relied upon by the State, with the same degree of particularity as the wording of the statute.
In the present case the indictment alleges that the defendant on a named date abandoned "his minor child," which would import a legitimate child ( Rimes v. State, 7 Ga. App. 556, supra; Woodard v. State, 18 Ga. App. 59, supra); yet the child's name is given as Deborah Elizabeth Collins, and the prosecutor is shown as Mary Collins, which would indicate that the child is asserted to be the illegitimate child of the defendant. The evidence necessary to sustain a conviction of abandonment of a legitimate child varies greatly from that necessary to sustain a conviction of the abandonment of an illegitimate child, since in the later case the evidence must not only show the wilful and voluntary abandonment of the child, but also the fact that the accused is the actual father of the child.
Code § 27-701 provides: "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury." In Locke v. State, 3 Ga. 534, 540, it was stated: "The requirement of the statute is, that the offense must be so plainly stated that the juryman may easily understand its nature. Our construction of this statute is, that the indictment should leave nothing to inference or implication; but that its statements should be so plain that a common man may without doubt or difficulty, from the language used, know what is the charge made against the accused."
The indictment in the present case infers that the defendant is charged with being the father of an illegitimate child, and having abandoned it. It does not plainly state such accusation, and the defendant was entitled to such certainty of pleading, which he invoked by special demurrer, as will enable him to make his defense. Johnson v. State, 90 Ga. 441 ( 16 S.E. 92); Brown v. State, 116 Ga. 559 ( 42 S.E. 795). The special demurrers to the indictment should have been sustained. The other demurrers were properly overruled.
Judgment affirmed in part and reversed in part. All the Justices concur, except Candler and Quillian, JJ., who dissent.