#### PEOPLE v. FREDERICK.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Failure to Support Wipe—Criminal Prosecution.

On a prosecution for being a disorderly person, in that defendant failed to support his wife, it is a question for the trial magistrate whether an offer by defendant to support his wife at his father’s house was made in good faith, where she made three unsuccessful attempts to gain admittance to such house.

Appeal from court of sessions, Fulton county.

Philip W. Frederick was convicted of being a disorderly person, under Code Or. Proc. § 899, for failure to support his wife, and he appeals. Affirmed.

For former report, see 21N. Y. Supp. 26.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK JJ.

Frank L. Anderson (H. Peck, of counsel), for appellant.

H. D. Wright, Dist. Atty., for respondent.

PUTNAM, J.

Defendant was convicted before a magistrate as a disorderly person, under the provisions of section 899 of the Code of Criminal Procedure, and the judgment of conviction was affirmed by the court of sessions of Fulton county. The complainant and defendant were married on January 1,1891, and it was alleged that defendant had abandoned his wife, and failed to support her, since Ipril 1, 1892. There was testimony before the magistrate tending to establish the truth of the charge made. But the defendant, on the trial, proved that on several occasions he had offered to provide the complainant with a home and support at his father’s house, and that she had declined to accept such offer; and defendant testified that he was unable to furnish her with support at any other place. The appellant insists that the offer and complainant’s refusal to accept it was an answer to the charge made against him, and that the magistrate erred, therefore, in rendering a judgment of conviction,, within the cases of Lutes v. Shelley, 40 Hun, 197; People v. Pettit, 74 N. Y. 320. In the cases cited the offers of the husband were held to have been made in good faith, and tendered a suitable home for the wife; and hence, if she failed to accept the support so provided by the husband, he could not be deemed a disorderly person. The rule laid down in those cases must govern this if the evidence was such that the magistrate could have found that defendant’s offers were made in good faith, and not with a fraudulent intent to evade the provisions of the statute. It was shown on the trial that the defendant had offered to provide a home and support for the complainant. at his father’s house. That she went there on December 29, 1891, and saw defendant, his father, and sisters. She told the defendant that she had come to see the rooms prepared for her. He answered he was sick, and could not show them that day, and closed the door, leaving her on the outside. On January 4, 1892, she again went there, and was told by appellant’s mother that she *1003wanted her to get out of there, and the door was closed in her face. Afterwards complainant again went to the house of appellant’s father, and said to defendant’s mother, who came to the door: “Philip told me here was where I was to get my support, and I have now come to accept his offer.” She was unable to obtain access to the house, and was told to go home. The witness Palmateer also testified to the statement of defendant that, “as circumstances stood now, his hair would be grayer than it is now before he would support or live with his wife.” Whether complainant, after trying three times unsuccessfully to obtain admission to the house of defendant’s father, should have made another attempt, was, we think, under the evidence, a question for the magistrate. He could very well find, under the. circumstances of the case, that defendant’s offer was insincere, and made with intent to evade the provisions of the statute. We think this case is similar to that of People v. Harris (Sup.) 14 N. Y. Supp. 830, and, as held in that case, it was a question for the magistrate to determine whether the offers of the appellant were made in good faith, and with intention to carry out the offer; “and that, under the circumstances, a conviction based on the belief that it was not would not be interfered with.” We have examined the various exceptions taken on the trial, and the rulings of the magistrate, and are of opinion none of them require a reversal of the judgment. It follows that the judgment should- be affirmed. All concur.