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Abandonment; constitutional question. Before Judge Price. Waynesboro City Court. January 15, 1957.
HEAD, Justice.
The act approved March 17, 1956 (Ga. L. 1956, p. 800) is not by its terms an ex post facto law, and under the facts of the present case the defendant's attack upon it is without merit.
In an accusation, dated May 16, 1956, it is charged that the defendant, Andrew Williams, on May 1, 1956, unlawfully and voluntarily abandoned his two illegitimate children (naming them), and left them in a dependent condition. To this accusation the defendant, on June 7, 1956, filed a defense denominated a "special plea." It is asserted that the charge of abandonment is predicated upon an act of the General Assembly approved March 17, 1956 (Ga. L. 1956, p. 800); that the alleged crime was committed on January 17, 1955; and that the prosecution is proceeding under an ex post facto law. He prayed that the act approved March 17, 1956, be declared illegal and void, "and that he be hence discharged." In the bill of exceptions it is asserted that, on January 15, 1957, the court entered an order disallowing the special plea, and the exception is to that judgment.
1. The Constitution, art. I, sec. III, par. II (Code, Ann., 2-302), provides that no ex post facto or retroactive law shall be passed. See also Code 102-104. The term ex post facto refers to criminal statutes. Wilder v. Lumpkin, 4 Ga. 208; Boston & Gunby v. Cummins, 16 Ga. 102 (60 Am. D. 717); Welborn v. Akin, 44 Ga. 420, 425; Bussey v. Bishop, 169 Ga. 251, 256 (150 S. E. 78, 67 A. L. R. 287).
The act approved March 17, 1956 (Ga. L. 1956, p. 800), amending the statute defining abandonment (Code 74-9902), so as to include illegitimate children, is not in any sense being given an ex post facto application in the present case. The accusation charged that the defendant abandoned his illegitimate children on May 1, 1956, and the accusation was returned on May 16, 1956.
The contentions of the defendant in his special plea are not in accord with the facts as shown by the record. The record discloses that on January 24, 1955, the defendant was convicted under an accusation based upon Code 74-9901, charging that, on January 17, 1955, he failed and refused to give security for the maintenance and education of his two illegitimate children when required to do so in the terms of the law, in a bastardy proceeding under Code 74-301 et seq. He was sentenced to serve twelve months on the public works, but was permitted to serve this sentence on probation, one of the conditions of the probation being that he make two semi-monthly payments of $15 for a period of twelve months for the support of his children.
The crimes of bastardy and abandonment are separate crimes under our statutes. Under our law as it presently stands, the father of a bastard child may be convicted for refusing to give the bond for its support and maintenance, and after the expiration of his sentence in the bastardy case, be convicted for the separate offense of abandonment under Code 74-9902, as amended by the act of 1956 (Ga. L. 1956, p. 800).
2. The motion to dismiss the writ of error is denied. Clearly, if the contentions of the defendant's special plea had been sustained, and an order entered that he be discharged, it would have been a final disposition of the cause.
Preston B. Lewis, Solicitor, Eugene Cook, Attorney-General, E. Freeman Leverett, contra.
Thomas S. Pierce, Pierce Bros., for plaintiff in error.
ARGUED APRIL 8, 1957 -- DECIDED MAY 13, 1957.
Saturday May 23 02:10 EDT

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