
    The People of the State of New York, Respondent, v. Charles Malone, Appellant.
    
      Neglecting to restrain a child from legging — what proof is insufficient to establish the offense.
    
    Evidence that the parents of a boy under sixteen years of age, who was arraigned before a magistrate charged with begging, were directed by the magistrate to restrain the child from begging; that the father of the boy punished him for his offense and directed him not to repeat it, and that less, than a month thereafter the boy was again detected begging, is not sufficient to warrant the conviction of the boy’s father, under section 392 of the Penal Code, for neglecting or refusing to restrain the child from begging.
    Appeal by the defendant, Charles Malone, from a judgment of the Court of Special Sessions of the Peace of the city of New York in favor of the plaintiff, rendered on the 27th day of February, 1901, convicting him of a violation of section 292 of the Penal Code.
    
      Béla B. Eisler, for the appellant.
    
      Charles E. Le Barbier, for the respondent.
   Ingraham, J. :

The defendant was convicted of a violation of section 292 of the Penal Code, which provides that A person * * * who having the care, custody or control of such a child (one actually or apparently under the age of sixteen years) as parent, relative, guardian, employer or otherwise * "x" * who neglects or refuses to restrain such child from * * * engaging * * * in begging or receiving or soliciting alms in any manner or under any pretense * * * is guilty of a misdemeanor. ” The only evidence to sustain this conviction is, that on January 21,' 1901, the defendant’s son was arrested for begging, he having been seen by an officer outside of Huyler’s candy store in West Forty-second street; that when the boy was arraigned before the magistrate his parents appeared and were directed by the magistrate to restrain the boy from begging; that subsequently and on February 11, 1901, an agent for the Society for the Prevention of Cruelty to Children saw the boy outside of Huyler’s candy store, West Forty-second street,

holding out his hands to customers entering and leaving the store begging; that he saw one man with two women hand him something, and that he then went and arrested the boy. Upon this evidence the agent for the Society for the Prevention of Cruelty to Children presented an information to the Court of Special Sessions, and upon' this information the defendant was arrested and convicted. The defendant testified that the boy was punished for the first offense and directed not to repeat it; that he went to school on the morning of the day upon which he was arrested the second time, and there is no. evidence that he had ever begged on any other occasion. I do not think that this evidence is sufficient to sustain a conviction. The defendant had notice that the boy had been arrested for begging in the streets, and he punished him for that offense. He certainly was not bound to anticipate that the boy would disobey his instructions not to repeat the offense. The .offense charged . against the' defendant is that he failed to restrain his son from begging in the street. Such a failure of restraint would apply to every parent who allows his son to go into the street unattended if the contention of the People in this case is sustained. A parent is not guilty of an offense because his son begs, but because he fails to restrain him from begging. We do not think it could have been the intention of the Legislature to hold a parent guilty of a crime by reason of a failure to confine a child or send a child to a penal institution who has once been caught begging in the street. To establish the crime the People must prove that the defendant neglected or refused to restrain the .child from begging or receiving or soliciting alms. Such neglect or refusal is not proved by a mere statement that a child was once found begging in the street of which" the defendant had notice and subsequently repeated the offense. There must be evidence that the parent neglected or refused to use the ordinary and proper means to restrain him from begging. There was no evidence of such neglect or refusal in this case. . •

The judgment appealed from should be reversed.

Van Brunt, P. J., Patterson, O’Brien arid Laughlin, JJ., concurred.

Judgment reversed.  