191 N.E. 17 | NY | 1934
The defendant has been convicted upon a charge that since the 9th day of February, 1925, he "failed and neglected to support his legally separated wife; by reason of which she is in danger or likely to be in danger of becoming a burden upon the public, in violation of Section 74 of the Inferior Criminal Courts Act." He has been sentenced to pay five dollars weekly for the support of his wife. In his defense the defendant introduced a judgment of the Supreme Court entered on February 11th in an action brought by the wife for separation on the ground of cruel and inhuman treatment. In that action the defendant interposed a counterclaim demanding judgment of separation and, after a hearing, judgment was entered in favor of the defendant dismissing the complaint and adjudging that "the said defendant * * * be * * * forever legally separated from the bed and board of Julia Ann Jansen, the said plaintiff, on the ground of the wilful abandonment of defendant by plaintiff." The question presented upon this appeal is whether a husband in whose favor a decree of separation has been granted violates the statute and becomes a disorderly *366 person by failure to support his wife, whereby she is in danger of becoming a public charge.
"The husband's obligation of support continues as long as the marriage relation is not dissolved or limited by a decree of divorce or separation. * * * A penal law may make failure to perform a duty to the State a crime, where the public interest demands its performance. Then the misconduct of the person to whom primarily the duty is owed becomes irrelevant." (People v.Schenkel,
Even where the wife secures a decree of separation, this court has said "that the obligation of the husband is not wholly terminated, but it assumes another form and rests upon different principles. Their duties and obligations towards each other during the separation are just what the court may have prescribed, and no other." (People ex rel. Comrs. of Charities
v. Cullen,
These provisions of the Consolidation Act have been embodied in section 74 (now § 105) of the Inferior Criminal Courts Act of the City of New York (Laws of 1910, ch. 659, amd. Laws of 1919, ch. 339), but their scope has been enlarged. Now a person "who fails to support his wife or children when his wife has secured a decree of separation by reason of which they are without adequate support or in danger of becoming a burden upon the public" is defined as a disorderly person. Neither the Consolidation *367 Act, construed in People ex rel. Comrs. of Charities v.Cullen (supra), nor the Code of Criminal Procedure, construed in People v. Schenkel (supra), contained such a clause.
That clause enlarges the scope of the statute to include a situation which lay outside of the scope of the statute heretofore construed by us. By its terms it applies where thewife has secured a decree of separation and the husband's duty to support his wife has not been terminated, though it has assumed a different form. There is nothing to indicate that the Legislature intended that in the city of New York a husband commits a penal offense by failure to perform a marital duty to support his wife from which the courts have by decree absolved him. The Legislature has provided an additional remedy in the city of New York for failure to perform an existing duty. It has not attempted, even assuming that it could do so, to impose a marital duty in the city of New York where no marital duty exists elsewhere in the State.
The judgment should be reversed and the information dismissed.
POUND, Ch. J., CRANE, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Judgment reversed, etc. *368
