People v. Bos , 1911 Ill. App. LEXIS 623 ( 1911 )

Mr. Justice Baldwin

delivered the opinion of the court.

A criminal complaint filed in the Municipal Court of Chicago, charging the plaintiff in error, Joseph Bos, with wife abandonment and leaving her in destitute and necessitous circumstances, in violation of section 24, chapter 68, Hurd’s Statutes. "A jury trial being waived, the cause was heard by the court, who found the defendant guilty and entered an order directing that he pay May Bos, his wife, $5 weekly, for the period of one year, for her support.

We are asked, to reverse the judgment of the court below upon the grounds (1) that the judgment is contrary to the law and the evidence; (2) that the statute creating the crime of wife abandonment is unconstitutional; and (3) that the Municipal Court has no jurisdiction to try cases of this character.

We have carefully considered this ease, not only upon die briefs and abstracts, but have read all the testimony shown by the record to have been heard at the trial. We think the second and third contentions of plaintiff in error not well founded. We find no reason for holding the statute unconstitutional, and we regard the decision of the Supreme Court in Glowacki v. People, 236 Ill. 612, as establishing the jurisdiction of the Municipal Court.

The parties had been married but three or four months when the separation took place. .Upon the record we think plaintiff in error was at fault in the situation which developed, and, it may be that in a proceeding for separate maintenance, his wife, May Bos, might obtain relief. The case before us, however, is a criminal case, and is founded upon a statute which provides: “That every person who shall without good cause abandon his wife and neglect and refuse to maintain and provide for her or who shall abandon his or her minor child or children under the age of 12 years in destitute or necessitous circumstances, etc., shall be deemed guilty of misdemeanor,” etc.

In the view we take of this statute, and of the evident purpose which it was intended to serve, we regard it essential to a conviction under it, that there should be proof tending to show that the wife or minor child or children abandoned, would be in destitute or necessitous circumstances, The evident purpose of the statute in thus creating this new criminal offense was to suitably punish husbands and fathers who, without good cause, should abandon their wives, minor child or children, in destitute or necessitous circumstances, thus leaving them likely to become a public charge. Indeed, the very complaint upon which this proceeding was had, distinctly made the averment that she was in “destitute, or necessitous circumstances, contrary to the statute in such case made and provided.” There was no evidence offered to support this allegation, which we regard as an essential part of the complaint, and, therefore, we feel compelled to hold that a case was not made out against the plaintiff in error.

It may be that such evidence can be produced upon another hearing, and a case made out, but, upon the record made, we feel compelled to reverse the judgment and remand the cause for another trial.

Reversed and remanded.