Daniels v. State , 8 Ga. App. 469 ( 1910 )

Hiu, C. J.

1. Under section 114 of the Penal Code of 1895, as amended by the act of 1907 (Acts 1907, p. 57), the offense of the father in abandoning his child is fully consummated if he abandons it in a dependent condition. Before this section was amended the offense was not complete unless the father left the child both dependent and destitute. An allegation in the indictment that the child was abandoned in a destitute condition is surplusage, and need not be proved, it being sufficient to allege and prove that the father abandoned his child and left it dependent. Cleveland v. State, 7 Ga. App. 622 (67 S. E. 696).

2. Where a father forcibly and by threats of personal violence drives his wife, the mother of his infant child, from home, and the mother, because of the infancy of the child, it being a babe at her breast, is compelled to take the child with her and seek a home elsewhere, and the father abandons the child, leaving it dependent on the mother and others, his offense is complete', and proof of such facts fully warrants his conviction.

Decided November 29, 1910.

Accusation of abandonment of child; from city court of Blakely —Judge W. A. Jordan. September 23, 1910.

Byron B. Collins, for plaintiff in err.or. Walter Parle, solicitor, contra.

3. Unfriendly relations between the father and the mother do not justify the father in abandoning his child and leaving it with the mother in a dependent condition; and testimony as to the existence of such relations between the father and the mother in this ease was properly excluded from the evidence.

4. “If the defendant shall introduce no testimony, his counsel shall open and conclude after the testimony on the part of the State is closed.” Penal Code of 1895, § 1029. The time for the election by the defendant of this right is at the conclusion of the State’s evidence. He can not then elect to introduce testimony pertinent and material to the issue, and subsequently, at the end of the entire evidence, withdraw his evh dence and thus regain his right to open and conclude the argument. In the instant case, however, the defendant did' not withdraw all of his evidence, but, according to the approved brief, left for the consideration of the jury some material evidence in his behalf.

5. No error of law appears, and the evidence supports the verdict.

Judgment affirmed.