Opinion
March, 1926.
Judgment of conviction of the County Court of Kings county reversed on the law, and indictment dismissed. The defendant was indicted upon the ground that, being the father of a child two months old, he abandoned said child. (Penal Law, § 480.) The proof shows that at the time of the alleged marriage of defendant to the mother of this child he had been married and was living with his wife. The "father" ["parent"] mentioned in section 480 is the father of a legitimate child, not a putative father. ( People v. Fitzgerald, 167 App. Div. 85.) It also includes "other person charged with the care or custody for nurture or education of a child * * *." There was proof in the case that the defendant had assumed the care and custody of this child. But he was indicted for being the father, and not for being the "other person." The charge by the court that defendant would be responsible if he had assumed custody and control of the child was error, to which exception was taken. The amendment of the indictment after conviction to conform to the proof so as to come within sections 480 and 481 of the Penal Law was abortive. Kelly, P.J., Rich, Jaycox, Kapper and Lazansky, JJ., concur.