Dalton v. State

• Decision Date: 03 June 1903
• Parties: DALTON. v. STATE.
• Court: Georgia Supreme Court

44 S.E. 977

118 Ga. 196

DALTON.

v.STATE.

Supreme Court of Georgia.

June 3, 1903.

PARENT—ABANDONMENT OF CHILD— EVIDENCE.

1. To warrant a conviction under the Pen. Code 1895, § 114, the child must be not only dependent, but in a destitute condition.

(Syllabus by the Court.)

Error from Superior Court, Muscogee County; W. B. Butt. Judge.

J. M. Dalton was convicted of abandoning his minor child, and brings error. Reversed.

G. Y. Tigner, for plaintiff in error.

S. P. Gilbert, Sol. Gen., for the State.

SIMMONS, C. J. Dalton was tried and convicted of the offense of abandoning his minor child, leaving it in a dependent and destitute condition. His motion for a new trial was overruled, and he excepted. The judge charged the jury, in substance, that, if the accused and his wife had separated on account of his misconduct, and he failed to provide for and support the child, which was with its mother, the jury would be authorized to convict him, although the wife had returned to her relatives, and they had supported and provided for the child on account of their love for it and on account of charity. Pen. Code 1895, § 114, provides that, "if any father shall willfully and voluntarily abandon his child, leaving it in a dependent and destitute condition, he shall be guilty of a misdemeanor." The evidence adduced on the trial showed that the father was willing for the wife to leave him and return to her relatives. The child, which she took with her, was between four and five years of age, and was, of course, dependent. The evidence, however, does not disclose that the child was destitute at the time of the abandonment, or had even become destitute up to the time of the trial. So the case turns upon the question whether the father is guilty if he fails to provide for his child after the separation, even though the child may be abundantly supplied with all the necessaries of life. While it is true that a father is under a moral and legal obligation to support his minor child, it is not also true that, if he fails in his duty, he may be convicted under the above section of the Code although the child is fully provided for by others. The father cannot be convicted unless it be shown that the child was not only dependent, but in a destitute condition. If it is not destitute, but is amply supplied with all necessaries, the father cannot be convicted. It is true he may have violated his moral and legal obligations in abandoning the child at all; but, as criminal statutes must...