dissenting. There was acute conflict as to whether the relation existing between the defendant and the prosecutrix was a wedlock or concubinage. If the relation was one of mere concubinage, the *264child would be a bastard, and is “nullius filius,” and is not within the contemplation of the code section penalizing the abandonment of a child by the father. The father of a bastard has his duty to the child fixed by the statute as to bastardy, and by it may be compelled to provide for his offspring, but he is -only in a penal sense a father, and then only after his paternity has been judicially determined. The charge of the court to the effect that the putative father of a bastard child is liable for its support and may be guilty of the statutory offense of the abandonment of a child rendered it entirely unnecessary for the jury in this case to inquire whether the defendant and the prosecutrix had in fact ever been married in any of the modes prescribed, and compelled the conviction of the accused even if the jury had discredited the testimony as to a marriage, and although they may have believed, from the evidence, that there had never been even the pretense of a marriage between the parties.
Decided October 7, 1915. Kehearing denied November 5, 1915. Indictment for abandonment of child; from Fulton superior court — Judge W. E. Thomas presiding. February 22, 1915. Frank L. Haralson, for plaintiff in error. Hugh M. Dorsey, solicitor-general, contra.'