Fry v. State

36 Ga. App. 312 | Ga. Ct. App. | 1927

Luke, J.

1. The defendant was convicted of abandoning his year-old child. The motion for a new trial alleges that the abandonment took place in Alabama, and that hence the conviction can not stand. The evidence shows that the defendant’s wife, at the time conception took place, was living with him and his mother in Chattooga County, Georgia; that a short time before the birth of her child the wife went to Alabama, where hex sister could attend her during child-birth, since the mother of the defendant was too old to be of much assistance in this respect; that this trip was made with the full consent of the defendant; that the wife never changed her residence to Alabama, but, was there only on a visit for the purpose stated above; that the child was born in Alabama when the mother was there on this visit and when the residence of both parents was in Chattooga County, Georgia, and that the defendant visited his wife and child in Alabama. The wife later came from Alabama back to Chattooga County, Georgia. She testified: “I have been back in Georgia nearly two months. I came to this county nearly two months ago. The child has been dependent upon others in this county since I came back from Alabama. My father lives in this county and I am living with him now. • I went down to Alabama for my confinement. He [the defendant] has not contributed anything for support of me or my child since I came back to Georgia and has not lived with me. . . Three weeks after I brought my child back I swor'e out a warrant for him, charging him with abandonment. That warrant is the basis of this case.” The defendant contends that he did not know his wife and child were in Georgia, but, according to the testimony quoted above, he must have known it after the warrant for him was sworn out, about five weeks before the trial, and he contributed- nothing towards the support of his child during that time. Furthermore, the jury could properly presume, from the evidence adduced, that if the defendant was not sufficiently interested to ascertain the whereabouts of his child, he had abandoned it. The evidence indicates that there was some disagreement between the parents of the child during the wife’s visit in Alabama, but it does not show an abandonment of the child there. Even if the wife were censurable in any disagreement which she might have had with her husband (which the evidence does not show), this would not relieve the husband of the duty to support his year-old child.

2. Error is alleged because the court admitted evidence that the defendant had gonorrhea and gave it to his wife, and that as a result her babe was born blind in one eye. Hnder the particular facts of this case there was no error in admitting this evidence. It could show a reason for the parents living in a state of separation; separation from the wife in this case was separation from the child, which was of tender years and was with its mother; and “absence is a necessary element in the crime of abandoning destitute and dependent children.” Brown v. State, 122 Ga. 568 (50 S. E. 378).

3. The court did not err in the charge relative to where the dependency began.

4. The evidence supports the verdict, none of the grounds of the motion for a new trial show reversible error, and the court properly overruled the motion..

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.