Chapman v. State

Beasley, Judge,

concurring in part and dissenting in part.

I concur fully in the erudite majority opinion with the exception of that portion of the fourth division which begins “[nevertheless.” In my view the questioned charge was harmful.

In the former appearance of this case, Chapman v. State, 177 Ga. App. 580, 581 (340 SE2d 237) (1986), we held that jurisdiction was properly in Georgia because of defendant’s recognition of his children as his family in Georgia. Under different circumstances, the original acts of the father would supply the first essential element — that of wilful and voluntary separation despite the passage of time because abandonment is not complete until the children become dependent and, since the statute of 1941, it is a continuing offense. Hall v. State, 202 Ga. 42, 47 (3) (42 SE2d 130) (1947); Bailey v. State, 214 Ga. 409, 412 (2) (105 SE2d 320) (1958).

Decided December 5, 1986 Rehearing denied December 18, 1986. Willie J. Woodruff, Jr., for appellant. James E. Cornwell, Jr., Solicitor, for appellee.

As correctly posited by the majority the focus here is directed towards whether the father abandoned his children in Georgia. The 1977 incident in North Carolina has no bearing on that determination. Yet, the instruction informed the jury that if they found the father forced the mother and children to leave their home that could constitute the first element of abandonment. This alien injection could not help but mislead and confuse the jury as to the true issue. For that reason the charge was harmful error and thus fatal to the conviction.

I would reverse the judgment.

I am authorized to state that Judge Carley and Judge Sognier join in this opinion.