Rhodes v. State

• Decision Date: 19 March 1948
• Docket Number: 31831.
• Citation: 47 S.E.2d 293,76 Ga.App. 667
• Parties: RHODES v. STATE.
• Court: Georgia Court of Appeals

47 S.E.2d 293

76 Ga.App. 667

RHODES v. STATE.

No. 31831.

Court of Appeals of Georgia, Division No. 2.

March 19, 1948

Syllabus by the Court.

1. The motion to dismiss the writ of error because the pauper's affidavit was premature in that it was made prior to the time the bill of exceptions was certified is denied. Such affidavit was properly executed when made after the motion for a new trial was overruled, this being the judgment on which the affidavit is predicated and a review of which is sought.

2. The offense of abandonment of a child by the father is a statutory one and is here alleged in the language of the Act. It was not error to overrule the motion to quash the indictment on the ground that it '* * * did not allege the ages of said children and did not allege that the children so alleged in said indictment to have been abandoned were minor children * * *.'

3. The fact that the children were being cared for by the paternal grandparents, other relatives or the charity of strangers does not prevent the criminal prosecution of the father for wilfully and voluntarily abandoning his children and leaving them in a dependent condition by failing to furnish such children with sufficient food and clothing for their needs.

4. The Court charged the definition of abandonment by a father of his children in the language of Code, § 74-9902, as amended. Held: This plainly states the essential elements of abandonment of a child in language which the jury could understand and which would enable the defendant to prepare his defense. This was sufficient in the absence of a request to charge.

5. The charge of the court contained the general principles of law applicable to the facts of the case. If any amplification of the general principles which the charge contained had been desired, they should have been made the subject of an appropriate and timely written request.

6. The evidence supports the verdict.

Stevens & Stevens, of Thomson, for plaintiff in error.

J Cecil Davis, Sol. Gen., of Warrenton, and Casey Thigpen, of Sparta, for defendant in error.

MacINTYRE Presiding Judge.

1. Associate counsel for the State contends that the writ of error should be dismissed 'because pauper affidavit relied upon by plaintiff in error to avoid payment of cost is a nullity. Pauper affidavit was executed on September 27 1947, and bill of exceptions was not certified until October 1, 1947, and not filed until October 3, 1947. A pauper affidavit made prior to bill of exceptions being certified is void,' and cites Swain v. State, 8 Ga.App. 410, 69 S.E. 310.

'An affidavit in forma pauperis, under the Code, §§ 6-1002(2), 24-3623, for the purpose of bringing a bill of exceptions to this court, cannot properly be filed in the trial court until after the rendition of the judgment a review of which is sought.' Owens v. Owens, 189 Ga. 338(1), 5 S.E.2d 883. 'The execution of such an affidavit before the rendition of the judgment excepted to will not relieve the plaintiff in error from the payment of the costs, and this is so for the reason that there is nothing upon which a pauper affidavit thus prematurely filed can lawfully operate.' Craig v. State, 108 Ga. 776, 33 S.E. 653; Swain v. State, supra.

Upon a careful reading of the cases, supra, we think the rule for determining, in the instant case, whether the pauper's affidavit was prematurely filed is not when the bill of exceptions was certified and filed, but when the motion for a new trial was overruled, which is the date of the rendition of the judgment a review of which is sought. The motion for a new trial was overruled on September 20, 1947, and the pauper's affidavit was executed seven days thereafter on September 27, 1947.

It thus seems that the pauper's affidavit, having been executed after the rendition of the judgment excepted to, was not prematurely executed, and the writ of error is not subject to dismissal on the ground urged. The motion to dismiss the writ of error is denied.

2. The material part of the indictment states: 'Jim Rhodes * * * the said accused * * * did unlawfully, wilfully, and voluntarily abandon his children, to wit: Betty Elizabeth Rhodes and Patricia Caroline Rhodes leaving them in a dependent condition, contrary to the laws of said State, the good order, peace and dignity thereof.'

The accused made a motion to quash the indictment 'upon the ground that said indictment did not allege the ages of said children and did not allege that the children so alleged in said indictment to have been abandoned were minor children.' The court overruled the motion to quash.

The rights and obligations arising from the relationship of parent and child are reciprocal. The parents have upon the one hand in general the right to the custody and control of the child and his services and earnings, although the legal rights of the parent are not absolute; and on the other hand the general duty to support, educate, and protect the child rests with the parent. 46 C.J. 1220, § 2.

In Ellis v. Hewitt, 15 Ga.App. 693, 695, 84 S.E. 185, 186, the Court quoted from Nightingale v. Withington, 15 Mass. 272, 8 Am.Dec. 101, as follows: "The father, and, in case of his death, the mother, is entitled to the earnings or their minor children. This right must be founded upon the obligation of the parents to nurture and support their children, which obligation is compensated by a right to their services."

The right of a father to the custody and the value of labor and services of his minor child is said to arise as a consequence of his obligation for its support and maintenance. 2 Kent's Com. 193.

In general the child who reaches the age at which his full civil rights are accorded him in this State is twenty-one years, and the child then and not the parent is entitled to his own earnings.

Be that as it may, when we consider the evil the law was endeavoring to reach, the word 'child' in connection with the general composition of § 74-9902 of the Code of 1933, as amended by the Acts of 1946, pp. 63, 64 (see 1947 Suppl. to Code Ann. § 74-9902), under which the indictment is drawn, such section being as follows: 'If any father * * * shall wilfully and voluntarily abandon his * * * child leaving it in a dependent condition, he * * * shall be guilty of a misdemeanor. * * * A child thus abandoned by the father * * * shall be considered to be in a dependent condition when the father * * * charged with the offense does not furnish sufficient food and clothing for the needs of the child. * * *', it is clear that the word 'child' denotes that class of children under the age of majority. Garrison v. State, 15 Ala.App. 596, 74 So. 726; Thompson v. Georgia Railway & Power Co., 163 Ga. 598, 136 S.E. 895; Gay v. State, 105 Ga. 599, 605, 31 S.E. 569, 70 Am.St.Rep. 68; ...