Young v. StateYoung v. State
- Reporters:
- , ,
- Before:
- Deen
The defendant was tried and convicted of abandonment of his minor child in the State Court of DeKalb County (formerly the Civil Court of DeKalb County). The evidence shows that he ceased paying child support under a divorce dеcree in December, 1976, after his wife’s remarriage; that he signed a consent to adoption
1. The evidence, although contradictory in some aspects, is sufficient to support a finding that the defendant was not misled into believing that his signature on a consent to adopt relieved him of his duties of support.
2. The defendant filed a notice to produce seeking to obtain from the state certain evidenсe properly in the possession of the prosecutrix or other third parties. State v. Haynie, 240 Ga. 866 (242 SE2d 713) (1978), overruling the Court of Appeals case in reliance on which the appellant acted, holds that while a motion to produce may be filed and served on the state, such a motion will not reach material which is not in the state’s рossession. Thus, a defendant in a criminal case cannot make the office of the solicitor or distriсt attorney its agent in ferreting out evidence which it does not possess and which would constitute a searсh and seizure of third persons involved only as victims of the crime.
3. After conviction the defendant filed what is in effect a motion in arrest of judgment on the ground that the accusation preferred against him was void as not suрported by an affidavit. Several cases have stated or assumed an affidavit is a necessary base for an accusation:
Scroggins v. State, 55
Ga. 380 (1875);
Smith v. State,
63 Ga. 168 (1) (1879);
Flanders v. State,
9 Ga. App. 820 (1) (72 SE 286) (1911);
Gilbert v. State,
17 Ga. App. 143 (86 SE2d 415) (1915);
Chauncey v. State,
129 Ga. App. 207 (2) (199 SE2d 391) (1973);
Rogers v. State,
133 Ga. App. 513 (211 SE2d 373) (1974);
Martin v. State,
139 Ga. App. 8 (228 SE2d 15) (1976). We have examined these cases and find them correct on their facts in that they were either appealed from county or justice of the peace courts having
4. (a) Hеarsay may be admissible to explain conduct and ascertain motive. The court did not err in allowing the dеfendant to state that he didn’t think he was supposed to continue paying child support after he signed the adoption agreement, or in disallowing a further statement by the defendant that his attorney and the attorney for his former wife “agreed that I should stop paying.” Indeed, it does not even appear that this alleged аgreement was made in the defendant’s presence, or that either attorney was offered as a witness to show its existence. The excluded testimony was inadmissible as
(b) We have sent for certain requests to charge which were denied by the trial court, and have examined them. Insofar as the rulings thereon are argued by the defendant they contend that the defendant’s consent tо adoption by another constituted a defense to the action. One of the requests is similar to language in Barrow v. State, 87 Ga. App. 572 (74 SE2d 467) (1953), which holds, however, that whether or not the parties agree between themselves to relieve the fаther of his duty of support, the duty still remains, “although such agreement should be considered by the jury in determining whether or nоt the father’s acts constituted a wilful and voluntary abandonment.” This ruling depends upon whether evidence of аn agreement to cease support was entered into by the parties, and, as above stated, no admissible evidence to establish that fact was offered. Accordingly, it was not error to deny the request for instructions.
Judgment affirmed.
Smith and Banke, JJ., concur.