10 Ga. App. 41 | Ga. Ct. App. | 1911
Lead Opinion
The only question involved in this case is whether the offense is barred by the statute of limitations. The defendant in the court below was charged with the offense of abandonment, and claims that he is entitled to an acquittal for the reason that the evidence shows that it has been four or five years since he left his wife and child, or since he furnished the child anything. The wife of the defendant, however, testified that she had repeatedly, within the last two years, asked the defendant to do something for his child, and that within the two years he each time refused her request. A majority of the court think the determination of the point at issue depends upon the nature of the ingredients necessary to constitute the offense of abandonment, and we are of the opinion that abandonment is a continuing offense, at least until the defendant has once been convicted thereof. We hold that the facts of this case distinguish it from the case of Gay v. State, 105 Ga. 599 (31 S. E. 569, 70 Am. St. R. 68), and that the ruling in that case is not binding as a precedent. The precise point, and the only point, presented for the decision of the Supreme Court in that case, was whether one who had once been convicted of abandoning his child could be again convicted of abandoning the same child.. Whatever else is said in the opinion in a general way, in reasoning as to' the nature of the offense of abandonment, can, we respectfully insist, be treated as mere obiter in arguendo. It is not authority. The usual cogent reasoning of the distinguished Justice who wrote the opinion (being beside the question to be decided) does not appeal persuasively to the majority of this court. To say the least of it, it would seem to be bad policy to apply the statute only to the father who might return to his child and attempt to repair, in some degree, the wrong he had done it, and, on the other hand, to reward the heartless father who callously abandoned his offspring to its fate forever.
Moreover, if precedents are to be consulted, we think it is clearly to be inferred from the rulings in Bennefield v. State, 80 Ga. 107 (4 S. E. 869), Bull v. State, 80 Ga. 704 (6 S. E. 178), and Brown v. State, 122 Ga. 568 (50 S. E. 378), as well as the rulings of this court in Moore v. State, 1 Ga. App. 502 (57 S. E. 1016), Cleveland v. State, 7 Ga. App. 622 (67 S. E. 696), and Ware v.
“Abandonment does not mean merely going away from destitute and dependent children, though absence is a necessary element to constitute the crime.” Intention is so essentially a part of every crime, and particularly that of abandonment, that the wilfulness and voluntariness which is involved in this section of the code is accentuated where there is, as in'the case now before us, evidence of a demand upon the father for the support of his child, and a refusal to comply, and this within two years before the prosecution. As held in Moore v. State, 1 Ga. App. 502 (57 S. E. 1016), quoting from the language of Chief Justice Bleckley in Bull v. State, 80 Ga. 704 (6 S. E. 178) : “A father who within this State wilfully and voluntarily abandons his child . . and persists in the abandonment afterwards, leaving it in a dependent and destitute condition, . . is guilty.” He further says: “That a father begins to abandon his child some months beT fore it is born will not excuse him for persisting in the abandonment and failing to furnish it with the necessaries of life. ” From this language we think it is clearly to be inferred that the Supreme Court recognizes the act of abandonment as being a continuous act. There is in the Gay case no reference to the Bull case, and no overruling of the doctrine which clearly runs through it. In the Brown case, supra, it appears that the trial court not only refused to charge
To our minds it is perfectly clear that abandonment, as a crim- , inal offense, includes two essentials: the voluntary separation of the father from his child (whether he leaves the child or sends it away), and failure to provide for it the support which the law obligates him to give. A father who leaves his children in a dependent condition, though it be for several years, but who, for the period of two years prior to an accusation being preferred against him, cares for their needs, may plead the bar of .the statute of limitations; but an absent father, who for two whole years prior to the accusation of abandonment leaves his offspring dependent and in want, so that this condition exists at the very time that the accusation is being preferred, can not, in our judgment, successfully interpose to the prosecution the bar of the statute, or otherwise defend himself. Judgment affirmed.
Concurrence Opinion
concurring specially. There is a strong appearance of validity in the argument that the case of Gay v. State, 105 Ga. .599 (31 S. E. 569, 70 Am. St. Rep. 68), is controlling here; but I am not so sure that that case and this one are not distinguishable as to be willing to dissent. The opinion of Judge Russell certainly leans toward giving the law a very salutarj'’ interpretation, and I think that, wherever a doubt exists as to the meaning of a law, the judge should strive to give it that construction which makes it most effective. The offense of abandonment created by our statute consists of two elements: the desertion, an act of the father; and dependence, a condition of the child. The two must concur before there is any crime. The Gay case holds that as to the first element (desertion) the act is not a continuous one, and that when a person is once convicted he can not be tried again until this element oc
