
    (75 Misc. Rep. 399.)
    PEOPLE v. HARMER.
    (Onondaga County Court.
    January, 1912.)
    1. Criminal Law (§ 218*)—Warrant—Indorsement.
    The fact that a warrant issued in one county on a charge of being a disorderly person within Code Or. Proc. § 899, subd. 1, was not indorsed with a direction to execute it in another county in which defendant was arrested, as required by sections 156 and 157, until the day after the arrest, is a mere irregularity, and not jurisdictional.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 44L-451, 457; Dec. Dig. § 218.*)
    2. Husband and Wife (§ 4*)—Failure to Support—Criminal Responsibil-
    ity.
    Under Code Cr. Proc. § 899, subd. 1, where it appears that defendant for over a year has only provided his wife with $18 for the support of herself and their three-year old daughter, though he was able to earn from $1.70 to $2 a day, and his wife, who is without means and living with her parents, testifies that she is willing to keep house except at defendant’s mother’s, with whom she is not on speaking terms, and defendant, instead of asking her to come to a home he has provided, simply tells her to go to his father’s house, a conviction is proper.
    [Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 9, 10; Dec. Dig. § 4.*]
    3. Husband and Wife (§ 4*)—Failure to Support—Criminal Responsibil-
    ity.
    To sustain a conviction under Code Cr. Proc. § 899, subd. 1, providing that persons who abandon their wives and 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, it need not be shown that the family of defendant has actually become a burden on the public, but is sufficient if it appear that there is danger of becoming such.
    [Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 9, 10; Dec. Dig. § 4.*]
    ♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    Appeal from Justice Court.
    Proceedings against Emery E. Harmer as a disorderly person witl> in Code Cr. Proc. '§ 899, subd. 1. Erom an order holding him to be a disorderly person within such section, and requiring him to give security provided for under section 901, which security was given, he appeals. Affirmed.
    Mosher, Wright & Bennett, for appellant.
    Edward D. Chapman, Asst. Dist, Atty., for the People.
   ROSS, J.

It is claimed by the appellant that the justice of the peace did not have jurisdiction of the person of the defendant, for the reason that the defendant was arrested in Jefferson county, and at the time of the arrest the warrant was not indorsed by a local magistrate of that county, pursuant to the provisions of sections 156 and 157 of the Code of Criminal Procedure; the warrant not being indorsed until the day after the arrest. The irregularity in the arrest was not jurisdictional. People v. Ebespacher, 79 Hun, 410, 29 N. Y. Supp. 796; People v. Cuatt, 70 Misc. Rep. 453, 126 N. Y. Supp. 1114; People v. Jeratino, 62 Misc. Rep. 587, 116 N. Y. Supp. 1121.

The principal claim of the appellant is that the people failed to make a case within the rules laid down in the case of People v. Pettit, 74 N. Y. 320, in that it is claimed that the defendant in this case offered to provide a home for his wife with his parents who reside in Jefferson county. It should be borne in mind that the record in this appeal,’ like ordinary appeals from a decision of a justice of the peace, is not complete. A justice is unable ordinarily to take all the evidence given, and every presumption which can be reasonably entertained shall be indulged in to sustain the finding of the justice.

The defendant and his wife were married in April, 1907. The issue of such marriage is one child, a daughter three years old. The wife has no property or means of support, and is living with her parents in the town of Van Burén. In the month of June after their marriage the defendant and his wife went to live in the house of the defendant’s parents in Jefferson county, and there remained until September of the same year. The parents lived on a rented farm and the relations between the wife and her husband’s parents were not harmonious—in fact, the defendant’s wife and her mother-in-law have not spoken to each other since May, 1910.

The defendant and his wife for a brief period of time kept house in Watertown. The defendant left and came to Syracuse. In 1910 the defendant was in Warner, in the town of Van Burén, and in the fall of that year he went to Pennsylvania, where he remained until February, 1911, since which time he has worked at different places in the town of Van Burén, and lived, at least for a few weeks, with his wife’s parents, without paying anything for his own or his wife’s or child’s board. He did not communicate with his wife before he went to Pennsylvania of his intention in that respect, and his correspondence during, his absence was very meager. The defendant since June, 1910, down to the time of the trial, only provided his wife with about $18 for her support and that of his child, although he was able to earn from $1.70 to $2 a day.

The defendant’s position is that he has offered to furnish his wife a place to live, but this offer seems to consist only of promises. The wife says she is now willing and always has been to keep house, except at his mother’s. The defendant also says that he is willing and will furnish his wife a house with his parents in Jefferson county. I will assume that his mother, who was sworn upon the trial, would have answered the question, which was objected to and excluded, to the effect ‘that she is willing to allow her daughter-in-law to live with her. Without going into the question whether the actual furnishing of a home for his wife with his parents would discharge his marital duty which rests upon him to support his family, it is sufficient to say that it fails in'this case for the simple reason that it is not true. Fie is not at his father’s. He- has not asked his wife and child to come to a home he has there provided for them, but says, “Go to my father’s house,” where, from previous experience between his wife and his mother, relations were unpleasant. Without a single preparation for housekeeping, .without any assurance that he will provide food or. raiment for his , wife and family except his empty promises, without any evidence that he has arranged to work for or with his father, without even "'furnishing the necessary railroad fare to take his wife and child to his father’s house, without any assurance that his father would permit him to remain there, he asks the court to say that he has in this manner discharged his duty as a husband and father. Judging what he will do in the future by what he has done in the past, this assurance would be very unreliable. While it is true that the husband has the right to select his own residence, it, .however, must be a reasonable and actual selection. But in this case he has made no selection. A selection of a residence means a reasonable preparation, a possession, the presence of the husband. It means something more than to say, “Go to Jefferson county and live.”

The case of People v. Pettit, 74 N. Y. 320, is distinguishable. It is interesting to note in this case that it also arose in the town of Van Burén in 1873, and was an appeal from a judgment in favor of the people against the principal and sureties upon" a bond which was given in a proceeding similar to this upon an order or judgment made in 1873 by the late De Witt C. Greenfield, a justice of the peace. One of the questions litigated was whether there had been a breach of the condition “if for the space of one year the wife shall not become a burden upon the public.” The defendant had a .home with his parents who owned a large farm near Cold Spring and a comfortable house, where he lived, and to which place he asked his wife to come with him and join him in his home, and even provided carriage accommodations to take her there, and she declined solely upon the ground that the defendant’s father was intemperate. See Appeal Book, Court of Appeal Cases 1878, vol. 17. The Pettit Case was one in which a farmer tendered to his wife a home with his parents, his home, in a locality known and near to his wife, and was the best home he could provide, was suitable to his station and his business; while in this case the defendant says, “Go to my father’s, that is the home I provide for you,” unaccompanied by any other condition indicating that he, in fact, has provided such a home.

This proceeding was instituted under the provisions of section 899 of the Code of Criminal Procedure, which reads as follows:

“lie following are disorderly persons: Persons who actually abandon their wives and 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.” ,

It appears from the language above quoted that it is not necessary to sustain a conviction that the family of the defendant has actually become a burden upon the public. If there is danger of their becoming such, a conviction is proper. The question presented in the Pet-tit Case and also in the case of Goetting v. Normoyle, 191 N. Y. 368, 84 N. E. 287, was whether there had been a breach of the condition of a bond given upon conviction of being a disorderly person, a bond which provided, in substance, that the family of the defendant should not become a burden upon the public, and which bond has been held by the Court of Appeals to be one of indemnity. In other words, a convictibn of being a disorderly person may be based upon what is likely, to occur, while an action upon a bond given upon such conviction can only be founded upon what has occurred.

Conviction affirmed.  