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Abandonment. Gwinnett Superior Court. Before Judge Pittard.
1. This is an appeal from the conviction of the defendant for the offense of abandonment of a minor child, the child being illegitimate. The trial judge gave the following in charge: "This is a type of case that the defendant could be placed upon what is known as--a probation, a conditional probation, providing for the support of the child." Immediately prior to the above charge, complained of by the defendant, the trial judge charged the jury: "This being a misdemeanor it would be incumbent upon the court to determine what punishment would be inflicted upon the defendant. The law provides a person guilty of a misdemeanor may be punished by fine, or imprisonment not to exceed 12 months." It is our opinion that charging the jury that the defendant could be placed on probation providing for support of the child was prejudicial to the defendant for the reason that it might have led the jury into finding him guilty because the defendant could get off without being punished. except for being required to support the child. See in this connection; McGruder v. State, 213 Ga. 259, 265 (98 SE2d 564); McKuhen v. State, 102 Ga. App. 75, 76 (115 SE2d 625), involving similar charges in cases where the jury was authorized to fix the punishment and which were held error because the charge may have induced the jury, after finding the defendant guilty, to fix a heavier punishment in order to prevent the effects of parole or probation here we think the charges were erroneous because they might have induced the jury to find the defendant guilty because of the suggestion of light punishment.
3. The remarks of the court made in the presence of the jury in a discussion between the court and counsel for the defendant as to the propriety of the counsel directing the defendant's attention to certain matters did not constitute improper comments upon the defendant making an unsworn statement, and of the court's statement, in denying counsel's request to instruct the defendant, to the effect that the defendant makes his unsworn statement "without benefit of counsel" were prejudicial to the defendant as contended, counsel should have made an objection to the remarks of the court at the time, either by instructions to the jury or by motion for mistrial. Not having done so, this court will not consider the enumerations of error.
Reid Merritt, District Attorney, for appellee.
Joseph E. Cheeley, G. Gibson Dean, II, for appellant.
Friday May 22 17:14 EDT

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