Thomas D. McBride, Herbert F. Holmes, Jr., Philadelphia, for appellant.
Kenneth D. Matthews, Asst. Dist. Atty., John H. Maurer, Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P.j., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 233]
This is a prosecution for a violation of section 731 of the Penal Code of 1939, P.L. 872, 18 P.S. § 4731.*fn1 The
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indictment charges, in substance, that the defendant on June 14, 1948, separated himself from his wife and minor son without reasonable cause and from that day until the date of the indictment (May 4, 1949) wilfully neglected to maintain his wife and child, they being destitute and dependent on his earnings for adequate support. It is conceded that the indictment cannot stand as to the son of the defendant since he was eighteen years of age when the indictment was found and therefore no longer a 'child' within the meaning of section 731. The cause was tried in the Criminal Division of the Municipal Court of Philadelphia by the court below sitting without a jury. The defendant was adjudged guilty with respect to his wife, and the court below, in the exercise of the discretion granted it by section 731,*fn2 suspended sentence upon and during the payment of $100 per month for the support of the wife and upon entry of bond by the defendant for faithful performance of this order. From that judgment and order the defendant has taken this appeal.
The following facts are pertinent: Defendant, his wife and son resided together as a family in the city of Philadelphia for a number of years, the last nine of which were spent at the same address, 3518 Wellington Street, a rented dwelling. Mrs. Petrosky has never left the Wellington Street address. In May of 1945, the defendant's employer, the Greyhound Bus Company, offered him a job in Indianapolis, Indiana. The new job involved a promotion and a considerable increase in salary. Defendant accepted the new position and, leaving his wife and son in Philadelphia, went to Indianapolis where he secured living accommodations at the
[ 168 Pa. Super. Page 235]
Lincoln Hotel. Defendant has resided at the Lincoln Hotel and has worked in Indianapolis from May 1945 to the date of the indictment, returning to Philadelphia for stays of about one week's duration in May 1945, September 1945, May 1946, September 1946, May 1947, September 1947, and June 1948. The trial judge found as a fact that Mrs. Petrosky was at all times willing to join the defendant in Indianapolis and make a home with him, but that defendant told her not to come and never made any attempt to establish a home for her in that city.
The defendant sent his wife $100 per month until September 1946. In June of 1948, the defendant gave her $1,000 to put in their joint bank account, extracting from her a promise that she would return it to him upon request. Defendant asked for this money in July of 1948, and Mrs. Petrosky sent him $800 and seven $25 war savings bonds. Defendant has made no contribution to his wife's support since that time.
On March 17, 1949, Mrs. Petrosky filed a petition for support under section 733 of the Criminal Code of 1939, 18 P.S. § 4733, and written notice of his proceeding was received by the defendant in Indianapolis on March 19, 1939. On April 6, 1949, defendant filed a complaint in divorce in Indianapolis, and in an ex parte proceeding following service by publication in accordance with Indiana law, a ...