Heard v. State, 32561.

• Decision Date: 11 July 1949
• Docket Number: No. 32561.,32561.
• Citation: 54 S.E.2d 495,79 Ga.App. 601
• Parties: HEARD. v. STATE.
• Court: Georgia Court of Appeals

79 Ga.App. 601

54 S.E.2d 495

HEARD.

v.STATE.

No. 32561.

Court of Appeals of Georgia, Division No. 2.

July 11, 1949.

Syllabus by the Court.

1. An accusation which states the offense charged substantially in the language of the code will be deemed sufficient. Code § 27-701, Ramer v. State, 76 Ga.App. 678, 47 S.E.2d 174.

2. Where the admissibility of evidence is doubtful, it should be admitted, and its weight and effect left for determination by the jury. Johnson v. Wilson, 47 Ga.App. 621, 171 S.E. 235; United Motor

Freight Terminals v. Driver, 75 Ga.App. 571, 44 S.E.2d 156.

3. (a) Where on the trial of a case an error of law is committed, but the verdict is such as is required by the evidence, and must have been the same had there been no error, a new trial will not be granted because of such error. Park and Iverson v. Piedmont and Arlington Life Insurance Co., 51 Ga. 510; Willis v. Meadors, 64 Ga. 721, 722 (4).

(b) On trial of the charge of abandoning a minor child, the only issues before the court are whether the separation actually occurred and whether the father failed in supplying the child with the necessities of life. Smith v. State, 42 Ga.App. 419 (2), 156 S.E. 338.

Error from City Court of Bainbridge; G. L. Worthy, Judge.

Emmett Heard was convicted of child abandonment, and he brings error.

Judgment affirmed.

The plaintiff in error, Emmett Heard, herein referred to as defendant, was tried in the City Court of Bainbridge for the offense of abandonment of a named child. The accusation was drawn in part in the following language:

" * * * for that the said Emmett. Heard on the 3rd day of February, in the year 1949, in the County aforesaid, did, then and there unlawfully and with force and arms wilfully and voluntarily abandon his child named Louie Heard, leaving it in a dependent condition * * *"

Before arraignment, defendant moved to quash the accusation on the ground that it set out no offense under the statutes of this state. The motion was overruled.

On the trial of the case, defendant's wife testified that she was the mother of three children, that defendant took a job in Waycross and refused to let her live with him, that she lived on a farm bought with proceeds of the sale of property which defendant had previously lost to a bank and which she had redeemed; that the oldest boy, 24 was afflicted and she had to support him; that she had to plow in the field to support her children, that defendant had ceased sending her money in 1945; in 1947 he had given her and the children sums totalling $12.70; since then he had paid nothing at all.

Defendant introduced a witness who testified that in 1948 he had lent defendant $5 which defendant gave the minor child; this the son denied, and further stated that he was ruptured, needed an operation and could not work well.

Defendant made a statement in which he said, "I have sent her money all along by mail and have never refused to do for my children."

The jury returned a verdict of guilty and sentence was imposed. Defendant filed a motion for a new trial on the general grounds, which was later amended by adding three special grounds.

The exception is to the judgment of the trial court overruling this motion.

Custer & Kirbo, Tom Clark, Bainbridge, for plaintiff in error.

M. E. O'Neal, Sol., Conger & Conger, Bainbridge, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. There is no merit in the motion to quash the accusation on the ground that it was defective in not alleging the abandonment of a "minor" child. The accusation was drawn in the words of Code § 74 9902, which states, "If any father shall wilfully and voluntarily abandon his child, leaving it in a dependent condition, he shall be guilty of a misdemeanor."

Every indictment or accusation which states the offense in the language of the Code, or plainly enough that the offense may be easily understood by the jury, is sufficient. See Code § 27-701; Ramer v. State, 76 Ga.App. 678, 47 S.E.2d 174; Manry v. State, 77 Ga.App. 43, 47 S.E.2d 817. The code does not use the word "minor". Further, in law the word "child" when used in laws having for their purpose the protection of children carries the well defined meaning of the young of the species, or those not having yet reached majority. See Black's Law Dictionary, definition of "child". The accusation was therefore sufficient.

2 Special ground 1 of the amended motion for a new trial contends that the trial court erred in admitting over timely objection the testimony of defendant's wife to the effect that she had in the heme an afflicted and dependent son 24 years of age, whom defendant had also abandoned.

Special ground 3 contends that the trial court erred in overruling the motion of counsel for defendant for a mistrial for alleged improper argument of counsel for the state in connection with his argument of the evidence complained of in special ground 1.

[2, 3] In admitting the evidence objected to, the trial court stated that he was...