Opinion
32561.
DECIDED JULY 11, 1949.
Abandonment of child; from Bainbridge City Court — Judge Worthy presiding. April 23, 1949.
Custer Kirbo, Tom Clark, for plaintiff in error.
M. E. O'Neal, Solicitor, Conger Conger, contra.
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 Iverson v. Piedmont Arlington Life Ins. 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. 308).
DECIDED JULY 11, 1949.
Emmett Heard was tried in the City Court of Bainbridge for the 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, the 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, the defendant's wife testified that she was the mother of three children, that the 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 the 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 the defendant had ceased sending her money in 1945; in 1947 he had given her and the children sums totaling $12.70; and since then he had paid nothing at all.
The defendant introduced a witness who testified that in 1948 he had lent the defendant $5 which the defendant gave the minor child; this the son denied, and further stated that he was ruptured, needed an operation and could not work well.
The 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. The 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.
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 the defendant's wife to the effect that she had in the home an afflicted and dependent son 24 years of age, whom the defendant had also abandoned.
Special ground 3 contends that the trial court erred in overruling the motion of counsel for the defendant for a mistrial for alleged improper argument of counsel for the State in connection with his argument on the evidence complained of in special ground 1.
In admitting the evidence objected to, the trial judge stated that he was admitting the testimony in order that the jury might have a more complete picture of the circumstances as they existed in the home. The gist of an action such as this includes both an abandonment by the father and a condition of dependency as to the child. See Daniels v. State, 8 Ga. App. 469 ( 69 S.E. 588). Although the mental and physical condition of the older son as such are not involved in the offense, we are nevertheless inclined to believe that the jury had a right to hear facts which might shed light upon the fact of dependency, such as that the younger son was also in ill health, that the mother's only income came from plowing in the field, and that she had additional responsibilities in furnishing the sole care of another afflicted son. The jury might then give whatever weight it saw fit to the evidence presented to it as to the dependent condition of the child. It has long been the policy of our courts to resolve the doubt as to the admissibility of evidence in such cases by allowing the jury to determine its weight and effect in the belief that, where there is an honest and valid reason for admitting it, the jury should not, for mere technical niceties, be denied an opportunity to review the facts and surrounding circumstances of the case. See 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), and citations.
Therefore, since the evidence was admissible and a part of the record of this case, it was not improper for counsel for the State to discuss the same in his argument to the jury.
3. Special ground 2 of the amended motion for a new trial contends that the trial court erred in overruling the motion of counsel for the defendant for a mistrial based on improper argument of counsel in stating, "I imagine he was basking in the big breast of some hot floozie in Miami." There was no evidence to support this argument. It was outside the record. It was probably prejudicial.
Reference to the statement of facts, however, discloses that the testimony of the State's witnesses amply made out a case against the defendant. The record contains no evidence refuting any of the essential elements of the crime of abandonment. The defendant's statement neither amounts to a denial of the charge nor an assertion of innocence. The verdict therefore was demanded by the evidence. The father neither denied the separation nor offered any evidence whatever to show that he had made any contribution to the child's support for three years, other than small gifts totaling less than $20.
"The only legal defense is to prove that such separation never occurred, or that the father did not fail in supplying the child with the necessities of life, such as food, shelter, clothing, etc." Smith v. State, 42 Ga. App. 419 (2) ( 156 S.E. 308). There is no testimony and nothing in the defendant's statement tending to overcome the testimony for the State that the father did in fact fail to supply the child with such necessities.
Although the alleged improper argument of counsel complained of in this ground of the amended motion for a new trial would probably have amounted to reversible error, had the verdict rendered by the jury not been demanded, yet since it was so demanded, the error was not harmful to the defendant and a new trial will not be granted on this ground.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.