#### The People, Resp’ts, *v.*Charles Harris, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 2, 1891.)*

Disorderly persons—Offer of support.

Defendant was convicted as a disorderly person for failing to support Ms family. On the trial he introduced in evidence a letter written by him to his wife to‘the effect that he would support his wife and child and furnish them transportation to the point where he was then at work. The letter did not state the place where he required her to go. *Held,*that it was a question for the magistrate to determine whether the letter was written in good faith and with intention to carry out the offer, and that under the circumstances a conviction, based on a belief that it was not, would not be interfered with.

Appeal from a judgment of the sessions of Cattaraugus county, affirming a judgment of a justice of the peace, convicting the defendant of the offense of being a disorderly person, under subdivision 1 of § 899 of the Code of Criminal Procedure.

*George W. Cole,*for app’lt; *J. H. Waring,*for resp’ts.

Macomber, J.

Upon proceedings properly instituted before a magistrate in the town of Salamanca, the defendant was convicted as a disorderly person within the definition of sub-division 1 of § 899 of the Code of Criminal Procedure, which is as follows:

> “ The following are disorderly persons:

> “ 1. Persons who actually abandon their wives or children, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means.”

*317The defendant was required in pursuance of § 901 of the same Code to give security by a written undertaking with one or more sureties, approved by the magistrate, to the effect that he would support his wife and child and indemnify the county and town against their becoming within one year a charge upon the public.

The main defense urged before the county court and before us is that there was no evidence showing that the defendant had abandoned his family; but that, on the contrary, as it is urged, he had offered to support them and provide for them a home of his own seeking according to his means. This evidence consisted mainly of a letter written by the defendant, in his own behalf, to his wife, to the effect that he would support his wife and child and furnish them transportation to the point where he was then at work. As the learned county judge remarks, the letter is silent as to the place where he required his wife to go. From this letter and from all the attending circumstances, it appears to have been fairly a question for the magistrate to determine whether the letter was written in good faith and with the intention to carry out the offer made, or whether it was written with a plan in view to bring himself within the rule laid down in the case of *Lutes*v. Shelley, 40 Hun, 197. That was a case in which the husband had offered to support and maintain his family, "with necessary medical attendance, in the house of one Aldrich in Orleans county, and offered to attend her there whenever she was ready, he claiming that he was not able to support her in any other place.

The wife declined such proposition and offer. The court held that she was not justified in so doing, because the husband had a right to select a home for her, and his judgment, when fairly exercised, should govern, in so far as to relieve him from the charge of being a disorderly person.

In the case cited there seems to have been no question of the good faith of the husband. . In this case the conclusion of the justice of the peace and of the court of sessions on appeal is manifestly based, upon their belief from the evidence that the defense was insincere and not supported by trustworthy evidence, and in this conclusion we agree with them.

It follows that the judgment appealed from should be affirmed.

Dwight, P. J., concurs.