138 Misc. 131 | New York County Courts | 1930
Sometime in September, 1930, apparently as a result of a misunderstanding arising because defendant insisted upon having a “ step-nephew ” live in his home, there occurred the culmination of a series of disagreements between the parties, growing out of that and, perhaps, some other subjects, and the defendant took the complainant to her parents’ house, and left her there. (Minutes, p. 6.) She says she asked him to come after her that night, and he said: “ I could stay up there for good.” The next day complainant and her mother and sister went back to the erstwhile home. They found there, besides the defendant, the step-nephew, a young man who is said to have divided his time between working for the defendant and prize fighting. Complainant told the boy to get out; and she says the defendant told the boy that he should stay there, and that the complainant should get out. Concededly, the defendant called up the police and requested that an officer be sent, that “ there are people that I want put out.” Complainant says she tried to telephone, and that the defendant twice “ gave me a shove and almost knocked me down.” A short time later, complainant and her relatives left, and the next morning defendant sent her personal belongings to her parents’ home, by truck. Defendant’s version does not quite agree with this, and he particularly denies that he used any violence, but does not deny that he refused to eject his nephew, the pugilist, and that he at least assented, if he did not direct, that the complainant should go home to her parents and stay there. Defendant has been, as above
A careful reading of subdivision 1 of section 899 of the Code of Criminal Procedure would seem to indicate that it, if taken literally, provides for three states of affairs; and that if any one of them exists the defendant would be a disorderly person. Disorderly persons are defined as persons who (a) “ actually abandon their wives and children without adequate support; ” then follows the disjunctive “ or; ” (b) “ leave them in danger of becoming a burden upon the public;” then the disjunctive “ or ” appears again, with the third definition, (c) “ who neglect to provide for them according to their means.” Rather curiously all the numerous cases bearing upon the paragraph seem persistently to construe it as if the word “or” was “ and.” Closely analysing the paragraph in question it would seem that the provisions which I have quoted as “ a ” and “ b ” above are more or less definitely involved together, that is, that “ b ” amounts to nothing more than a corollary of “ a.” Assuming that to be so, there still remains “ c ” which defines “ neglecting to provide for them according to their means,” and which, giving due consideration to the preceding “ or,” would seem to define a situation which would make a husband a “ disorderly person ” if he neglected to provide for his family according to their (or Ms) means, irrespective of what the result might be and whether they were in danger of becoming “ a burden upon the public,” or not. SometMng of tMs sort seems to have been attempted to be established in People v. DeWolf (133 App. Div. 879). However, it is noteworthy that both the prevailing and dissenting opimons consider the financial condition of the complainant, and seem to treat it as an essential element (pp. 881 and 883).
I am unable to find any case, notwithstanding the last provision contained in subdivision 1 of section 899, wMch holds that a husband is a disorderly person who fails to properly support Ms wife or cMldren unless it follows that they are “ in danger of becoming a burden upon the public.” I tMnk we must, therefore, consider that as the settled law of the State, notwithstanding what appears to be the contrary language of the Code section in question.
In the present case the complainant testified that she was without any means of income whatever; that she was in bad health, a condition wMch she blamed the defendant for, and she ventured the opimon that she would be unable to work for a year. She was living at the time of the trial with her parents; and it appeared on cross-examination that they owned the house they lived in. Nothing else was brought out with reference to their means. It also appeared on cross-examination that the complainant had the
We come to the question of whether the defendant had “ actually abandoned ” his wife. If the dictum in Weigand v. Weigand (103 App. Div. 42) is a correct statement of the law, apparently the
I think it may be held in this case that the act of the defendant in taking his wife, even if it was at her request, to her mother’s
I have not lost sight of the fact that the defendant has controverted some of the claims of the complainant. It is to be borne in mind that what is occurring in this case in this court is not a trial de novo, but a review of a judgment in the City Court of Utica, without a new trial. The City Court has found in favor of the complainant upon all the controverted questions of fact. Under such a situation I can only reverse the decision of the court below, where it appears that the decision of that court was so clearly against the weight of the evidence that the court could not reasonably have arrived at the decision which it did. (Murtagh v. Dempsey, 85 App. Div. 204, 205.) The rule set forth in the citation last named was promulgated in a civil action, but something like that rule must certainly obtain in criminal cases. Criminal appeals are governed mainly by section 764 of the Code of Criminal Procedure; but I do not consider that anything therein to be found justifies the appellate court in interfering with a judgment upon the facts unless it is clearly and obviously wrong, and nothing of that sort appears in this case. In view of all the evidence in the case and particularly of the fact, and it undoubtedly is a fact, that the defendant knows more about his financial condition and his earnings than does the complainant, I think the amount of the weekly payment should be reduced from fifteen dollars to ten dollars.
The judgment may be modified by reducing the weekly payment to ten dollars per week, and as so modified will be affirmed.