48 S.E.2d 570 | Ga. Ct. App. | 1948
The venue of the first prosecution for the offense of abandonment of minor children is in the county where the state of the dependency of the children upon others began on account of the parent's failure to support them, and nothing contained in the re-enactment of Code § 74-9902 by the act of the General Assembly of 1946 (Ga. L. 1946, p. 63, 64, Code (Ann. Supp.) 1947, § 74-9902) can be construed to require a contrary holding.
Construing the evidence in its most favorable light to uphold the verdict the jury trying the case was authorized to find facts substantially as follows: that the defendant and his two daughters lived together in Wilkinson County, where the father maintained a home for his daughters and supported them in a fairly substantial manner and in accordance with their station in life; that their mother had died a short time previously; that the defendant and his wife had been estranged a short time before her death but they were living together at the time of her death; that while the defendant and his two daughters were living together after the death of his wife, the relationship between them, particularly between the father and the older daughter, was not amicable; that the father objected to the girls having young men companions and he was somewhat abusive toward his daughters; that the girls claimed to be afraid of their father because of apprehensions that he might attack them for illicit sexual purposes, however, the evidence in the record of any conduct on his part that would authorize any such apprehension is, to say the least, meager; that one night during the month of February, 1947, the *256 two daughters, while washing the supper dishes became involved in a quarrel; that as punishment to the older daughter the defendant took off his belt and struck her and that he then took up a chair and threatened to strike her with it. She testified in part "his treatment toward me would have been bad, brutal, if I hadn't run from him." The jury was also authorized to find that the next morning the two girls left home and went to stay with an uncle in Irwinton, Wilkinson County; that they remained with him until the end of the school term where they were attending school; that while they were there the defendant came for them and attempted to force them to return home but failed in this respect; that at the end of their school term they went to Dublin, Laurens County, to an aunt, a sister to their mother, arriving there about the 3rd or 4th of June, 1947, where they continued to reside up to and including the time of the trial; that the defendant has contributed nothing to the support of his two daughters since they left his home in February, 1947; that the Grand Jury of Laurens County indicted the defendant in the instant case at the October term, 1947, of the Superior Court of said county.
The jury returned a verdict of guilty and the defendant was accordingly sentenced. The defendant filed a motion for a new trial on the general grounds and one special ground in which he contends that the venue of said offense is in Wilkinson County and not in Laurens County.
The trial judge overruled the defendant's motion for a new trial as amended and this judgment is assigned as error. Code § 74-9902 was repealed by the act of the General Assembly (Ga. L. 1946. pp. 63, 64), and was, by the same legislation re-enacted in terms as follows: "If any father or mother shall wilfully and voluntarily abandon his or her child leaving it in a dependent condition, he or she, as the case may be, shall be guilty of a misdemeanor. The wife and husband shall be competent witnesses, in such cases to testify for or against the other. A child thus abandoned by the father or mother shall be considered to be in a dependent condition when the father or mother charged *257 with the offense does not furnish sufficient food and clothing for the needs of the child. The offense of abandonment shall be and is hereby declared to be a continuing offense. Former acquittal or conviction of said offense shall not be a bar to further prosecution therefor under this section; if it shall be made to appear that said child was in a dependent condition as defined herein for a period of 30 days prior to the commencement of prosecution." See Code (Ann. Supp.), § 74-9902.
The legislative change thus wrought in the original Code § 74-9902 (Penal Code of 1910, § 116) by the act of 1946 above referred to, makes the section applicable to mothers as well as fathers and adds another provision as follows: "The offense of abandonment shall be and is hereby declared to be a continuing offense. Former acquittal and conviction of said offense shall not be a bar to further prosecution therefor under this section if it shall be made to appear that said child was in a dependent condition as defined herein for a period of 30 days prior to the commencement of the prosecution."
Before this change was made in the statute only fathers could be guilty of the offense of abandonment of their minor children, and where the father had already been convicted, he could not thereafter be convicted unless he had resumed the discharge of his parental duties to the child and thereafter again deserted it. See Gay v. State,
According to the undisputed evidence in the instant case these children became dependent on their uncle in Wilkinson County after they left the home of their father; they remained dependent upon him from sometime in February until the 3rd or 4th day of June, 1947; that they then went to Laurens County and became dependent upon their aunt and remained dependent upon her from the date of their arrival at her home until the trial of their father in February, 1948.
It therefore necessarily follows that the venue of the instant *259
case is in Wilkinson and not in Laurens County. (See Beasley v.State,
It is not necessary for us to decide where the venue would have been had the defendant already been tried in Wilkinson County, and thereafter the children have remained away from him in Laurens County in a dependent condition for a period of 30 days or more. The provision in the new act that "The offense of abandonment shall be and is hereby declared to be a continuing offense," gives to this act additional significance to that contemplated in Abraham v. State,
The judgment of the trial court overruling the motion for a new trial as amended is error.
Judgment reversed. MacIntyre, P. J., and Gardner, J.,concur.