(dissenting) :
The defendant was present on the trial, but saw fit not to be sworn, and no evidence was given on his behalf. He rested his case upon the testimony of his wife, who was a witness for the prosecution.
The defendant married his wife February 21, 1906, and she lived with him until May 13, 1908, when she left him. It is contended on.behalf of the defendant, and a majority of this court seem to ' *882hold, that there was not at the time she went away sufficient reason or adequate excuse for her so doing.
I.cannot assent to this view. . If her testimony is true (and the defendant does not dispute it) I think he entirely misconceived the duties he owes to his wife. The wife testifies: “ She (referring (to her husband’s mother) would push me away when we separated the milk. My husband spoke to me on one of those oceasions. I p>ut the bread into the jar and the cover would not go on easily, so I pushed it on. My husband said lie ivould knock my head off my shoulders. I have had the door shut in my face.by his mother about three times. I .was pushed onto the stove in the summer kitchen. This was the second time. The first time, my husband was on the side porch and I went to speak to him and he pushed me out. * * "x" Last summer my husband said that he thought it. was a shame for me.to lay abed and let mother do the work. I had had the sick headache.- This was the second day of my sickness.” He refused to get anything- for the house except what wras absolutely necessary, such as groceries, etc. His mother waved .her arms and acted crazy; she rushed through the house shouting and claimed that the wife had made her deaf and blind. The mother kicked one of her shoes off and directed it at the wife, and when she (the wife) called her hnsband’s attention to- it and asked what he 'thought of that, he said that he had never seen her do such a thing as that before. She asked her husband if she could have rooms in the house; hé said that she could not have one room in ■the house without his mother.. She asked him to .provide a home somewhere else ; lie said. “ Ho.” She asked him if he would not have a house on his own land, across the road ; he said “ Ho.” Then she asked him what she should do ; he said that lie didn’t care a damn what she did; what became of her. She said she would not stay with him; then she left. •
It is not at all strange that she should become nervous and fretful under such treatment. Of course, her husband did not knock her head off, as he threatened; hut she was pushed on ^ the stove and off the porch. I will leave that branch of the case without further comment, except to say that T think she was abundantly justified in leaving. .
Section 899 of the Code of Criminal Procedure declares that per*883sons who actually abandon their wives or children, without adequate support, or who neglect to provide for them according to thei/r means, are disorderly persons. There is no question but that the defendant here is abundantly able to support his wife and to furnish her a home, but he refuses to do so except as heretofore.
I think she is not obliged to submit to the indignities and ill-treatment to which she has been subjected, and that the town authorities cannot require her to do so. If, under such circumstances, she lacks for proper support and is in danger of becoming a public charge, it is the duty of the proper officer to take the proceedings to compel her husband to support her and give the proper undertaking therefor. Section 901 of the Code of Criminal Procedure provides in substance that the form of the undertaking shall be to indemnify the town against her becoming a public charge within one year. I think the evidence was sufficient to require the husband to give the undertaking. Of course, if there is no breach in the condition of the undertaking, no harm will come to the defendant in giving it.
I think the County Court was right in sustaining the order of the justice of the peace and that the judgment should be affirmed.
Spbing, J., concurred.
Judgment of County Court and of Justice’s Court reversed, and proceeding dismissed.
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