Where the undisputed evidence in an abandonment proceeding against the father of minor children showed that the parents separated in Florida and the mother took the children with her to Georgia to live, and that, since the return of the wife and children to Georgia, the defendant's desertion remained continuous and he never again resumed his parental duties and status in regard to them, and that no divorce or alimony proceeding was ever maintained, jurisdiction of the offense remains in Florida rather than in Georgia, and the court should have so charged the jury upon request.
Ralph F. Weltzbarker was indicted, tried, and convicted in the Superior Court of Colquitt County of abandoning minor children. The evidence on the trial, including the defendant's statement, showed without dispute that he and the prosecutrix were married and had four minor children; and that they moved to Florida in 1942 and were domiciled there in 1949, at which time the mother took the children with her and returned to Colquitt County, Georgia, where they have since resided. The evidence is silent as to whether she voluntarily left the defendant, whether she deserted him, or whether he sent her and the children to Georgia, or forced her to leave him. She testified, however, that he had never provided any home for them in Colquitt County, had never come back there to live, but had only made one or two short visits. On one of these visits, more than three years prior to the present proceedings, he was arrested on a charge of abandonment. No sentence was passed in that case, but the defendant paid the prosecutrix $40 at that time, and a total of $80 additional contribution during the next five or six months, but nothing since that time, nor has he since that time, so far as the evidence shows, nor since the separation in Florida in 1949, in any other manner resumed his parental duties and obligations.
The defendant filed a motion for new trial on the general grounds, which was later amended by adding one special ground, and the denial of this motion is assigned as error.
Code (Ann. Supp.) 74-9902 provides in part as follows: "If any father or mother shall wilfully and voluntarily abandon his or her child, leaving it in a dependent condition, he or she, as the case may be, shall be guilty of a misdemeanor. The wife and husband shall be competent witnesses, in such cases, to testify for or against the other. A child thus abandoned by the father or mother shall be considered to be in a dependent condition when the father or mother charged with the offense does not furnish sufficient food and clothing for the needs of the child. The offense of abandonment shall be and is hereby declared to be a continuing offense. Former acquittal or conviction of said offense shall not be a bar to further prosecution therefor under this section; if it shall be made to appear that said child was in a dependent condition as defined herein for a period of 30 days prior to the commencement of prosecution." It was held in Gay v. State, 105 Ga. 599
(31 S. E. 569) that, after a completed act of desertion there can not be a new act of abandonment until there is a return to the parental duties, followed by another act of desertion. It was held in Blackwell v. State, 48 Ga. App. 221
(172 S. E. 670) that merely contributing small sums to the support of the minor dependent children is not such actual return to the children and assumption of parental control as will constitute the failure thereafter to support the children a new act of desertion rather than a continuation of the original act of desertion. These cases, in view of the act of 1941 (Ga. L. 1941, pp. 481, 483), no longer constitute a defense to a second prosecution for abandonment after a former acquittal of conviction (see in this regard Hall v. State, 202 Ga. 42
, 42 S. E. 2d 130) but they are still authority insofar as they hold what elements must be present to constitute a second abandonment. Since the original abandonment in the case at bar occurred--insofar as can be concluded from the record here--in Florida in 1949, the venue of the offense, it being continuing in nature, is in the State of Florida rather than in the State of Georgia. Since there was, after 1949, no resumption of parental rights or duties (the mere contribution of the $120 about three years prior to this action not being sufficient in law to constitute a return to the discharge of parental duties), the abandonment has been continuous since the 1949 separation, and the venue of this offense lies in Florida rather than in Georgia. Cleveland v. State, 7 Ga. App. 622 (2)
(67 S. E. 696). Mere failure to provide adequate shelter, food, and clothing for minor children is alone not sufficient to support a conviction of abandonment, it being required also that in addition such failure must be wilful and voluntary and a failure to give parental care. Brock v. State, 51 Ga. App. 414
(180 S. E. 644); Blackwell v. State, supra. This case must fall under this rule rather than the one supported by another line of cases, where, by reason of divorce, alimony, or custody proceedings, the parental control has been taken from the defendant by operation of law and he is left only with the duty to furnish support. Dyer v. State, 87 Ga. App. 440 (2)
(74 S. E. 2d 129); Ozburn v. State, 79 Ga. App. 823
(54 S. E. 2d 376).
Although venue as such must be raised by a special ground of a motion for new trial (Code 6-1609), nevertheless, the defendant was entitled to have the controlling issues of law charged as presented by the evidence. Accordingly, the trial court erred in refusing to charge the timely written request of the defendant, as follows: "If you find from the evidence in this case that the wife left the defendant in Florida and came to Colquitt County and brought the children with her and that she remained here all since, and if you find further that the defendant never came to Colquitt County and again assumed the duty of supporting them in Colquitt County, Georgia, then and in that event, the court would not have jurisdiction, and a verdict of not guilty is demanded, and it will be your duty to so find."
The trial court erred in overruling the motion for a new trial as amended.