DALTON v. THE STATE

Supreme Court of Georgia1903-06-03

118 Ga. 196

Summary · law.co

Holding. The judgment of conviction is reversed because the evidence failed to establish that the child was in a destitute condition; the statute requires proof of both dependency and destitution, and a father cannot be convicted under this provision if the child is adequately provided for by others, despite the father's moral and legal obligation to support his minor child.

Dalton was convicted of abandoning his minor child in violation of a statute prohibiting fathers from willfully and voluntarily abandoning children in a dependent and destitute condition. The trial judge instructed the jury that conviction was proper if Dalton failed to provide for his child after separating from the child's mother, even if the child was actually being adequately cared for by the mother's relatives. The evidence showed that while the child was dependent, it was not destitute—the child's relatives were providing all necessary food, clothing, and care out of affection and charity.

The court held that the statute requires proof of both dependency and destitution. A father cannot be convicted merely for failing to support his child if that child is actually being amply supplied with necessaries of life by others, even though the father may have violated his moral and legal duty by abandoning the child. The statute's language must be read strictly and requires that the child be left in actual destitute condition—lacking any protector or source of sustenance—not simply dependent or without parental support.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Meaning of 'destitute condition' in child abandonment statute
Whether failure to provide support is criminal when child is adequately cared for by others
Strict construction of criminal statutes

Procedural posture

Dalton was convicted at trial, his motion for a new trial was denied, and he appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, C. J.

Dalton was tried and convicted of the offense of abandoning his minor child, leaving it in a dependent and destitute condition. His motion for a new trial was overruled, and he excepted. The judge charged the jury, in substance, that if the accused and his wife had separated on account of his misconduct, and he failed to provide for and support the child, which was with its mother, the jury would be authorized to convict him, although the wife had returned to her relatives and they had supported and provided for the child on account of their love for it and on account of charity. The Penal Code, § 114, provides that “If any father shall willfully and voluntarily abandon his child, leaving it in a dependent and destitute condition, he shall be guilty of a misde meanor.” The evidence adduced on the trial showed that the father was willing for the wife to leave him and return to her relatives. The child, which she took with her, was between four and five years of age, and was, of course, dependent. The evidence, however, does not disclose that the child was destitute at the time of the abandonment, or had even become destitute up to the time of the trial. So the case turns upon the question whether the father is guilty if he fails to provide for his child after the separation, even though the child may be abundantly supplied with all the necessaries of life. While it is true that a father is under a moral and legal obligation to support his minor child, it is not also true that, if he fails in this duty, he may be convicted under the above section of the code although the child is fully provided for by others. The father can not be convicted unless it be shown that the child was not only dependent but in a destitute condition. If it is not destitute, but is amply supplied with all necessaries, the father can not be convicted. It is true he may have violated his moral and legal obligations in abandoning the child at all; but as criminal statutes must be construed strictly, we are constrained to give this statute this interpretation. Jackson, C. J., in discussing this question in McDaniel v. Campbell, 78 Ga. 188, said: To leave a child dependent does not convey the idea of absolute destitution. The child may be cared for and comfortable, and yet dependent on some charity; but left destitute, it has no protector, friend, or other author of benevolent kindness feeding and clothing it.” Atldnson, J., in discussing the same question in Crow v. State, 96 Ga. 297, said (p. 299): “Many cases occur in human experience where a child is less destitute under the tender care of affectionate grandparents than when its wants are left to be supplied by an improvident and shiftless parent. At all events, neither abandonment nor destitution is proven unless the father leaves the child intending to abandon it to its own fate without providing for it the necessaries of life, and leaving it wholly dependent upon others who are themselves unable or unwilling to provide for it.”

Judgment reversed.

By jive Justices.