The accused was tried and convicted, in the criminal court of Atlanta, for the offense of abandonment of his children, leaving them in a dependent and destitute condition. He made application to the judge of the superior court for a writ of certiorari. The judge refused to sanction the petition, and to this judgment the accused accepted.
1. When this case was called for argument in the Supreme Court, the solicitor-general of the Atlanta circuit and the solicitor of the criminal court of Atlanta each appeared at the bar of the court and expressed his willingness to undertake to represent the State in the case. The constitution imposes upon the solicitor-general the burden of representing the State in all cases taken up from his circuit to the Supreme Court. Civil Code, § 5862. It is clear that if the judge had sanctioned the petition for certiorari, it would have been the duty of the solicitor-general to have represented the State in the case in the Supreme Court, and we think that the case as presented here is a case taken up from the
2. In order to make out the offense of abandonment, under the Penal Code, § 114, it is necessary to show that the father left the child, not only in a dependent, but in a destitute condition. Dalton v. State, 118 Ga. 196; Baldwin v. State, 118 Ga. 328. There was no evidence that at the time of the desertion the children’s mother was not able to and did not in fact maintain them. Hence there was no evidence that they were left in a destitute condition. Baldwin v. State, supra. Even if the testimony of the police officer, that “in July” he found very little provisions in the house, was sufficient to show destitution at that time, it does not appear in what year this was. It may have been in 1904 after the accusation was found, or it may have been more than two years before.
Judgment reversed.