Minnix v. State, 63192

• Decision Date: 05 April 1982
• Docket Number: No. 63192,63192
• Citation: 162 Ga.App. 29,290 S.E.2d 131
• Parties: MINNIX v. The STATE.
• Court: Georgia Court of Appeals

Page 131

290 S.E.2d 131

162 Ga.App. 29

MINNIX v. The STATE.

No. 63192.

Court of Appeals of Georgia.

April 5, 1982.

William L. Tucker, Walter F. Johnson, Jr., Columbus, for appellant.

Robert Johnson, Sol., Andrew Prather, Asst. Sol., Columbus, for appellee.

CARLEY, Judge.

Appellant appeals from his conviction of misdemeanor child abandonment under Code Ann. § 74-9902.

1. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal. Appellant and the prosecutrix are not married and have never lived together. The accusation charging appellant with abandonment of his illegitimate child alleged that the crime had occurred on December 25, 1978, in Muscogee County, Georgia. However, the evidence at trial demonstrated that on that date the child had been born, not in Georgia, but in Florida. The prosecutrix had apparently left her home in Muscogee County some months prior to the birth of her child and was living in Florida with her sister when the child was born. The prosecutrix then returned to her home in Muscogee County a few weeks after the birth of the child, in late January or early February of 1979. It is essentially appellant's position that, in view of this evidence that the child was born in Florida, the other evidence adduced at trial would not authorize a finding that he was guilty of the completed crime of child abandonment in Muscogee County. See generally Jemmerson v. State, 80 Ga. 111, 5 S.E. 131 (1887); Gay v. State, 105 Ga. 599, 31 S.E. 569 (1898); Turner v. State, 56 Ga.App. 488, 193 S.E. 78 (1937); Weltzbarker v. State, 89 Ga.App. 765, 81 S.E.2d 301 (1954).

"There are two elements in the offense of abandonment of a child: (a) desertion and (b) dependency. Both elements must be present to complete the offense. [Cits.] ... [T]he offense of a father's abandoning his child is fully consummated if he abandons it in a dependent condition. [Cits.]" McCullough v. State, 141 Ga.App. 840, 234 S.E.2d 678 (1977). However, "regardless of where the abandonment (desertion) may have had its beginning, ... the crime is consummated at the place where the child becomes dependent upon persons other than the parent. [Cits.]" Fairbanks v. The State, 105 Ga.App. 27, 30-31, 123 S.E.2d 319 (1961). In the instant case, the evidence did not demand a finding that appellant had "deserted" the child during the very few weeks she was living in Florida rather than after her return to the prosecutrix's home in Georgia. See Brock v. State, 51 Ga.App. 414, 180 S.E. 644 (1955); Funderburk v. State, 91 Ga.App. 373, 85 S.E.2d 640 (1955). "Desertion" means " 'the wilful forsaking and desertion of the duties of parenthood...' [Cit.]" Waites v. State, 138 Ga.App. 513, 514, 226 S.E.2d 621 (1976). Furthermore, the evidence would authorize a finding that, pretermitting appellant's actions or inactions with regard to the prosecutrix and the child while they lived in Florida, the crime of abandonment was not "consummated" by the child's dependency upon others until after her return to Georgia. See Garrett v. State, 41 Ga.App. 545, 153 S.E. 628 (1930). See also Nunn v. State, 39 Ga.App. 643, 148 S.E. 165 (1929); Sikes v. State, 37 Ga.App. 164, 139 S.E. 87 (1927). Accordingly, the cases relied upon by appellant are distinguishable for the reasons stated in Fairbanks v. State, 105 Ga.App. 27, 31, supra. "Abandonment" within the meaning of Code Ann. § 74-9902 was shown to have occurred in Georgia and venue was proper in Muscogee County under that statute.

It is not material to the resolution of this enumeration that the accusation's allegation that the crime occurred in Muscogee County on December 25, 1978, a time when the child lived in Florida, is at variance with the evidence adduced at trial demonstrating that the abandonment in fact occurred some weeks or months later after the return of the prosecutrix and child to Muscogee County. See generally King v. State, 155 Ga.App. 418, 271 S.E.2d 16 (1980). Compare Johnson v. State, 153 Ga.App. 771, 266 S.E.2d 551 (1980). The mere fact that it was "impossible" for the crime alleged in the accusation to have been committed on the date alleged therein did not authorize the grant of a motion for a directed verdict of acquital. See generally Harris v. State, 58 Ga. 332, 333 (2) (1877). The evidence supports the verdict. Hunt v. State, 101 Ga.App. 126, 112 S.E.2d 817 (1960); Lancette v. State, 151 Ga.App. 740(1), 261 S.E.2d 405 (1979); Hardin v. State, 152 Ga.App. 278(1), 262 S.E.2d 565 (1979). We find no error in the denial of appellant's motion for a directed verdict of acquittal for any reason urged on appeal.

2. Appellant enumerates as error the denial of three motions for mistrial made in three separate instances. As to the two motions made during the course of the evidentiary portion of the trial, the appellant did not renew his motion or make further objection after the trial court instructed the jury to disregard certain comments of the solicitor. Thus, he cannot complain on appeal. See generally Purcell v. Hill, 220 Ga. 663, 141 S.E.2d 152 (1965); Delaney v. State, 154 Ga.App. 772 (1), 270 S.E.2d 48 (1980). As to the third motion, made during the solicitor's closing argument, appellant "has not met his burden of establishing the alleged error by the record. [Cits.]" Stephens v. State, 156 Ga.App. 859, 860, 275 S.E.2d 758 (1980). Accordingly, these enumerations are meritless.

3. During the charge, the trial court instructed the jury in the language of Code Ann. § 74-9902(c) "that if its verdict [was] for the acquittal of [appellant], and that its reason for so finding [was] that [appellant was] not the father ... of the child alleged to have been abandoned, ... its verdict [should] so state..." Appellant objected to this charge on the ground that it, in effect, instructed the jury that an acquittal of appellant "must be predicated on an affirmative finding [that] he is not the father, and [the charge] does not include [the] reasonable doubt [standard.]" On...