1. Where an amendment to a motion in arrest of judgment, setting up grounds separate and distinct from those contained in the original motion, is not insisted upon in this court by the party asserting the same, such amendment will be treated as abandoned. *Page 43
2. Where, by motion in arrest of judgment, a portion of a criminal statute is attacked as unconstitutional, and where neither the indictment, plea, verdict nor judgment contains anything to indicate that the portion of the statute attacked as unconstitutional was applied or invoked in the prosecution, such motion does not present the question to this court for determination.
3. There was no error in denying the plea of autrefois acquit.
4. It was not error to overrule the amended motion for new trial.
No. 15674. FEBRUARY 4, 1947. REHEARING DENIED MARCH 20, 1947. Clyde Hall was indicted, tried, and convicted at the March, 1946, term of the Superior Court of Elbert County for the abandonment of his minor children. Before entering his plea of not guilty, he filed a plea of autrefois acquit, setting up that he had been acquitted under an identical accusation at the February, 1946, term of the City Court of Elberton. The trial judge ruled against the accused and exceptions pendente lite were taken.
Upon the return of the verdict of guilty, the judge passed sentence and judgment. Motion for a new trial was filed, amended, and overruled on September 13, 1946. Prior to the overruling of the motion for new trial, the accused filed a motion in arrest of judgment with an amendment thereto, which was denied on the same date the motion for new trial was overruled. The exceptions are to the ruling upon his plea of autrefois acquit, motion for new trial, and motion in arrest of judgment.
It is asserted that this court has jurisdiction for the reason that in the motion in arrest of judgment the construction of certain provisions of the Constitution of the State and the United States are involved.
Omitting the formal parts, the indictment charges that the accused did "wilfully and voluntarily abandon his children [setting forth their names and ages], leaving them in a dependent condition, contrary," etc. There was a plea of not guilty, and a verdict, "we, the jury, find the defendant guilty." The accused was sentenced to 12 months, but permitted to serve outside the public-works camp provided he make certain monthly payments for the support of the children until each child reaches the age of 14 years.
The original motion in arrest of judgment alleges: "1. That the indictment in said case was and is predicated upon the act *Page 44 of the General Assembly of Georgia, approved January 31, 1946, the same being an act to amend section 74-9902 of the Code of Georgia and substituting a new section bearing the same number in lieu thereof, which said act reads as follows: `74-9902. 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 thirty days prior to the commencement of prosecution.' Defendant and movant herein and as ground in arrest of judgment says that the last provision in the above-quoted statute, to wit: `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 thirty days prior to the commencement of prosecution,' is null, void, and of no effect, and does not constitute a part of the law of this State, for the reason that the General Assembly of Georgia was without authority to enact the same as the same is in conflict with and prohibited by article 5 of the Constitution of the United States of America as contained in section 1-805 of the Code of Georgia, and that part of said article and section which reads as follows: `Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,' and because the said enactment is in conflict with and prohibited by the Constitution of Georgia as contained in section 2-108 of the Code of Georgia, same being paragraph 8 of article 1 of the Constitution of Georgia, which reads as follows: `No person shall be put in jeopardy of life or liberty more than once for the same offense save on his or her own motion for a new trial after conviction or in case of mistrial.'" *Page 45
In an amendment thereto it is further alleged: "1. That the sentence of the court in said case was suspended on the condition that the defendant pay certain amounts of money for the support and maintenance of the minor children he was charged with having deserted and abandoned, said sentence being as follows: `Copy of the sentence is hereto attached and by reference made a part hereof.' Movant says that the portion of said sentence suspending the operation of the same upon the condition that the defendant pay certain sums of money for the support and maintenance of the minor children alleged to have been deserted and abandoned by him, which condition was imposed under the provisions of the act of the General Assembly of Georgia approved March 27, 1941, and contained in Georgia Laws 1941, page 481, and especially section one thereof, is null and void for the reason that the same violates the provisions of article 1, section 1, paragraph 9, of the Constitution of Georgia, in that it imposes an unusual punishment . . [within] the purview of the same; and is further null and void for the reason that it violates the provisions of article 1, section 1, paragraph 21, of the Constitution of Georgia, for the reason that the provision of said act contemplates imprisonment for debt within the purview of said constitutional inhibition, and is contrary to both provisions of said Constitution of Georgia." 1. The ground of the amendment to the motion in arrest of judgment, which attacked the constitutionality of the sentence as being in violation of article 1, section 1, paragraph 9, of the Constitution of Georgia of 1945 (Code, Ann. Supp., § 2-109), in that it imposes an unusual punishment, and also attacking the sentence as being in violation of article 1, section 1, paragraph 21, of the Constitution of 1945 (Code, Ann. Supp., § 2-121), in that it amounted to imprisonment for debt, not having been insisted upon in the brief or orally before this court, will be treated as abandoned. City of Hawkinsville v. Williams,185 Ga. 396 (2) (195 S.E. 162); Powell v. Powell, 196 Ga. 694 (27 S.E.2d 393).
2. "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable *Page 46 which appears on the face of the record or pleadings." Code, § 110-702. Section 110-703 also provides that such motion "must be predicated on some defect which appears on the face of the record or pleadings." Section 27-1601 provides that "no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offense charged in the indictment." Where it is sought to arrest a judgment imposing a sentence in a criminal case, the "face of the pleadings" have been held to be the indictment, plea, verdict, and judgment. Pippin v. State,172 Ga. 224 (157 S.E. 185).
A motion in arrest of judgment being narrow and restricted in its province, we are therefore limited to the face of the pleadings in determining whether a violation of the constitutional provisions as to former jeopardy (Code, §§ 1-805, 2-108) is presented by the record. It must be borne in mind that only a portion of the statute defining abandonment and making it a criminal offense is under attack. The entire statute is quoted in the original motion, which is set forth in the above statement of facts, as is also the portion thereof which is attacked as unconstitutional and the constitutional provision invoked, and reference thereto will be had without recopying it here in its entirety. The attack is not made on the entire statute nor upon the part thereof which defines abandonment and makes it a crime, but only on that portion of the statute which provides: "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." Code (Ann. Supp.) § 74-9902.
The question, therefore, narrows down to whether this particular provision of the statute is presented, and its constitutionality attacked by the face of the pleadings, to wit, the indictment, plea, verdict, and judgment. The indictment alleges only that the defendant did "wilfully and voluntarily abandon his children . . leaving them in a dependent condition," and contains no allegations which would seek to apply the portion of the statute here complained of by alleging and seeking to make valid the instant prosecution, notwithstanding a previous conviction or acquittal. Neither is there anything in the plea, verdict, or judgment to *Page 47 show that the portion of the statute here complained of was invoked in the instant case. In Boswell v. State, 114 Ga. 40 (2) (39 S.E. 897), it is stated that an indictment based upon an unconstitutional statute may be taken advantage of by motion in arrest of judgment. Whether this was obiter dicta, or whether under some conditions this would be correct, need not here be determined. But where, as in the instant case, the face of the pleadings, to which we are confined and circumscribed by the rules of law, nowhere refers to or invokes the portion of the statute asserted to be unconstitutional, the constitutionality of this portion of the statute is not drawn into question, so as to present the question for determination.
3. In view of the foregoing as to the constitutional questions, and applying to the plea of autrefois acquit the Code, § 74-9902, as amended by the act approved January 31, 1946 (Ga. L. 1946, p. 63), the court did not err in denying such plea. The plea showed that the accusation in the City Court of Elberton upon which the accused was acquitted was dated August 9, 1945, alleging that the crime occurred on a previous date; and the indictment upon which the instant trial took place was returned into court March 13, 1946. The statute provides: "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 thirty (30) days prior to the commencement of prosecution." It is therefore clear that there was ample time before the commencement of the second prosecution for the State to show the dependent condition of the child or children more than thirty days before the commencement of the second prosecution and subsequently to the institution of the first prosecution.
Nor does the fact that the accused and the State agreed that the accused and his family had not cohabited, and that he had lived separate and apart from the children since the original separation prior to the first prosecution, make the plea of autrefois acquit good. By the act of 1941, p. 481 (Code, Ann., § 74-9902) the offense of abandonment was made a continuing offense, and it was therefore not required of the State to show a return to the children and a subsequent abandonment following the original abandonment for which he was first tried. The rulings inGay v. *Page 48 State, 105 Ga. 599 (31 S.E. 569, 70 Am. St. R. 68), andBlackwell v. State, 48 Ga. App. 221 (172 S.E. 670), are not now controlling, for the reason they were made prior to the act of 1941, p. 481, which made the offense continuing.
We have carefully examined the two grounds of the amended motion excepting to portions of the charge, and also the two grounds excepting to the admission of testimony, none of which sets forth reversible error. The verdict was authorized by the evidence, and the trial judge did not err in overruling the motion for new trial.
Judgment affirmed. All the Justices concur.