Funderburk v. State , 91 Ga. App. 373 ( 1955 )

91 Ga. App. 373 (1955) 85 S.E.2d 640

FUNDERBURK
v.
THE STATE.

35445.

Court of Appeals of Georgia.

Decided January 19, 1955.

Charles W. Smith, for plaintiff in error.

Jeff C. Wayne, Solicitor-General, contra.

CARLISLE, J.

There are two essential elements in the offense of abandonment of minor children: (1) desertion, that is, the wilful forsaking and desertion of the duties of parenthood; (2) dependency, that is, leaving such children in a dependent condition; and before a parent may be convicted of this offense, under the provisions of Code (Ann. Supp.) § 74-9902, there must be proof of both elements. Blackwell v. State, 48 Ga. App. 221 (172 S.E. 670); Glad v. State, 85 Ga. App. 312 (69 S.E.2d 699); Brock v. State, 51 Ga. App. 414, 418 (180 S.E. 644); Bowling v. State, 62 Ga. App. 540 (8 S.E.2d 697); Brock v. State, 54 Ga. App. 403 (187 S.E. 906). Under an application of the foregoing principle of law to the facts of the present case, the evidence, together with all reasonable inferences to be drawn therefrom, failed to establish the element of desertion, and consequently the trial court erred in denying the motion for a new trial based solely on the general grounds. The evidence shows the defendant to be a peripatetic painter by trade. He worked wherever work was available. His family, consisting of his wife and four children, lived in Hall County, Georgia; and, although he had been working and living in New Orleans for approximately eighteen months prior to the return of the indictment for abandonment, he returned to his wife and children every two or three months and was at home in fact when arrested for abandonment. During the time he was in New Orleans, he sent his wife at least 39 money orders, totalling $578.57, and on his visits to the wife and children gave the wife certain unspecified amounts of money. While the jury was authorized to find that the defendant's contributions to the support of his children were meager indeed, the jury was not authorized to find or infer that the defendant had wilfully forsaken and deserted his parental duties.

Judgment reversed. Gardner, P. J., and Townsend, J., concur.