People v. Malone — 16 N.Y. Crim. 25

Majority

p. 25

Supreme Court—Appellate Division—First Department.

July 9, 1901.

THE PEOPLE v. CHARLES MALONE.

( 105 St. Rep. 224 .)

Headnote

Begging—Penal Code, section 292.

Defendant’s son was arrested for begging and the magistrate directed Ms parents to restrain him from begging. Subsequently he was arrested for a like offense. Defendant testified that he had punished Mm and directed Mm not to repeat the offense; that he went to school on the morning he was arrested, and there was no evidence that he had ever begged on any other occasion. Held, that the evidence was insufficient to sustain a conviction under Penal Code, section 292.

p. 26

Appeal from judgment of Court of Special Sessions of City of Hew York, convicting Charles Malone of crime of allowing his child to beg in the streets.

. Bela D. Eisler, for appellant.

C. E. Le Barbier, for respondent.

The defendant was convicted of a violation of section, 292 of the Penal Code; which provid.es that “a person . who having the care, custody or control of such a child [one apparently under the age of sixteen years] as parent, relative, guardian, employer or otherwise . . . who neglects or refuses to, restrain, such child 1 . . 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 bis 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 hoy outside of Huyler’s candy store, West Forty-second street, holding out his hands to customer’s entering and leaving the store, begging; that he saw one man with two women hand him something, and he then went and arrested the, hoy. 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 hoy was punished for the first offense, and directed not i» 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 convie

p. 27

tiom.. 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 ten 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 heen 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 in begging or receiving or soliciting aims. Such neglect or refusal is not proved by a mea*e 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 bagging. There was no- evidence of such neglect or refusal in this case.

The judgment appealed from should be reversed. All concur.