Donaghy v. State

100 A. 696, 29 Del. 467, 6 Boyce 467, 1917 Del. LEXIS 23

• Court: Supreme Court of Delaware
• Decided: February 28, 1917
• Status: Published

Opinions

Curtis, Ch.:

Numerous exceptions to the record were taken by the plaintiff in error, but as stated by his counsel in his brief they involve in general only three questions, which were there succinctly stated thus:

“1. Has the Municipal Court for the City of Wilmington jurisdiction macases arising under Chapter 262, Vol, 27, Laws of Delaware?

‘ ‘2. Upon an appeal to the Court of General Sessions from inferior courts under Article 4, § 30, of the Constitution of the State of Delaware,, may the Attorney General file a new information; and if so, in what respects may the new information differ from the information filed in the inferior court?

‘ ‘3. What constitute ‘without lawful excuse' and ‘in destitute or necessitous circumstances’ under Section 1, Ch. 262, Vol. 27, Laws of Delaware?"

This last point raises the question as to the sufficiency of the proof made in the trial of the information in the Court of General Sessions. The question of jurisdiction depends upon whether under the Constitution the Municipal Court could be given power to hear causes wherein a husband is charged with desertion and non-support of his wife and children. Article 4, § 30, of the Constitution of the State of Delaware provides:

“The General Assembly may by law give to any inferior courts by it established or to be established, or to one or more justices of the peace, jurisdiction of the criminal matters following, that is to say: assaults and batteries, keeping without license a public house of entertainment, tavern, inn, ale house, ordinary or victualing house, retailing or selling without license, or on Sunday, or to minors, wine, rum, brandy, gin, whiskey, or spirituous or mixed liquors, contrary to law, carrying concealed a deadly weapon, disturbing meetings held for the purpose of religious worship, nuisances, and such other misdemeanors as the General Assembly may from time to time, with the concurrence of two-thirds of all the members elected to each House prescribe.

‘ ‘The General Assembly may by law regulate this jurisdiction, and provide that the proceedings shall be with or without indictment by grand jury, or trial by petit jury, and may grant or deny the privilege of appeal to the Court of General Sessions; provided, however, that there shall be an appeal to the Court of General Sessions in all cases in which the sentence shall be imprisonment exceeding one month, or a fine exceeding one hundred dollars.”

[1] The doctrine of ejusdem generis, invoked by the defendant, is a rule of statutory construction to the effect that where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. As has been said, such a rule is based on the obvious reason that if it was intended that the general words should be used in their unrestricted sense, no mention would have been made of the particular classes. The particular application of the rule made by the defendant to the constitutional provision in question is that the word “such” is taken to mean “like,” or “of the kind,” and that the legislature can give to the Municipal Court, or any other inferior court jurisdiction of misdemeanors of the same kind or like those enumerated in the constitution, and the particular misdemeanor of failing to support a wife or child is not like any other misdemeanors so enumerated. The case of Hull, 18 Idaho, 475, 110 Pac. 256, 30 L. R. A. (N. S.) 465, does not sustain the position taken by the defendant, because the general phrase there construed was ‘ ‘or any such,” which is quite different from ‘ ‘and such other.”

[2] But there is an important modification of the rule as to ejusdem generis very pertinent in this case. Obviously the doctrine does not apply where the specific words signify subjects greatly different from one another. See State v. Eckhardt, 232 Mo. 49, 133 S. W. 321, quoting a fair definition of the doctrine contained in 36 Cyc. 1119, 1120, also cited in the defendant’s brief. See, also, McReynolds v. People, 230 Ill. 623, 82 N. E. 945; Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann. Cas. 1914C, 302; Brown v. Corbin, 40 Minn. 508, 42 N. W. 481. Is there such a similarity or relationship between the several criminal matters mentioned in the constitutional provision under consideration? Clearly they are all crimes of the grade of misdemeanors, as distinguished from felonies. In other respects they are public wrongs, having no characteristics common to all of them. Some are breaches of the peace, viz., assaults and batteries, and perhaps disturbing religious meetings, while none of the others are. Others relate to the enforcement of laws for collection of revenue, with only a remote bearing on peace and good order, viz., keeping without license a tavern, and selling intoxicating liquors without license, or on Sunday, or to minors. Incidently this class of criminal matters relate to the promotion and enforcement of morality. Disturbances of religious meetings probably involve a breach of the peace, but a broader purpose may be to secure to the individual freedom in his right- to worship without annoyance. Nuisances are of many kinds, and do not necessarily involve a breach of the yeace, and rarely do. Chiefly they relate to acts or conduct affecting injuriously the public health or morals. They differ in almost every way from, every other criminal matter stated in the clause mentioned. It is clear, then, that there is no such general similarity between crimes that are distinctly breaches of the peace, those relating entirely to enforcement of revenue measures and those relating to the public health and morals, and so the rule of ejusdem generis does not apply here. The constitutional question as to jurisdiction is disposed of by the above consideration relating to the character of the above criminal matters without considering the punishments affixed thereto by the General Assembly.

It is not claimed that the Non-Support Act violates in any other way the constitutional provision above quoted, for it was enacted by a vote of two-thirds of the legislature, the offense created is not a felony, and an appeal was provided. As has been pointed out, the constitutional phrase ‘ ‘such other misdemeanors as the General Assembly may * * * prescribe’ ’ means naturally

and according to the usual meaning, as well as from the context “other misdemeanors such as the General Assembly may * * * prescribe,” and if it had been intended to qualify the word ‘ ‘misdemeanors’ ’ to mean demeanors like those mentioned, the phrase used would naturally and properly have been “and other such misdemeanors.”

[3] It is argued that the Constitutional Convention could not have intended to confer upon the Municipal Court for the City of Wilmington jurisdiction of offenses like the one before the court, because the accused would have no right of appeal in cases where neither imprisonment for a month nor a fine of one hundred dollars is imposed. We are of the opinion that in every case where the payments imposed upon the accused would, during the continuance of his bond, amount to at least one hundred dollars he would be entitled to an appeal. That would cover practically every case, and be in harmony with the spirit of the law.

[4, 5] In holding that there was not in the section of the Constitution referred to a limitation upon the power of the General Assembly to give to the Municipal Court jurisdiction of the criminal matters contained in the Non-Support Act, no violence is done to the provisions of Section 20 of Article 4 of the Constitution, whereby a broad power is given to the legislature to change the subject matter to be adjudicated in the cotuts of the state of superior jurisdiction. B y the last mentioned section, after defining, by general words the jurisdiction of the Court of Oyer and Terminer, Supérior Court, Court of General Sessions, Orphans’ Court and Court of Chancery, power was given to the General Assembly to repeal or alter the several jurisdictions in any matter, or giving any power to either of said courts. This provision in terms relates only to those of the superior courts there named, and theretofore established and then existing, and not to the then existing inferior courts, none of which was named, or to any such inferior courts as may hereinafter be created. Neither does it inferentially limit the power of the legislature to alter the jurisdiction of any existing inferior court, such as the Municipal Court of Wilmington, by giving to it jurisdiction of other misdemeanors than those enumerated in Section 30 of Article 4 of the Constitution, as herein above quoted, for obviously there is no relation between the two kinds of courts, and besides (which must be conclusive on the point) in another section of the same Constitution the power to alter the jurisdiction of such inferior courts was expressly given to the General Assembly. The conclusion is, then, that the Municipal Court of the City of Wilmington had jurisdiction of the criminal matters contained in the Non-Support Act.

[6, 7] The next question relates to the procedure on appeal and the filing of a new information in the appellate court. An appeal to the Court of General Sessions from the Municipal Court having been taken by the defendant, the Attorney General filed in the appellate court a new information differing in some respects from that in the lower court, and it is claimed that this was error, and that the case must be proceeded with upon the record of the court below. The constitutional provision above quoted respecting the jurisdiction of inferior courts simply provides that there shall be an appeal to the Court of General Sessions, and there is not there any procedure provided as to the mode of taking or hearing the appeal, nor does any statute do so in explicit terms, but if at all only inferentially. Speaking generally an appeal effects a removal of the cause to another tribunal and involves a hearing de novo on both facts and law, as distinguished from a writ of error or certiorari, by the use of which questions of law only are subject to re-examination. By the constitutional provision as to inferior courts the General Assembly may by law regulate the jurisdiction to be conferred on such inferior courts, and the General Assembly gave this jurisdiction to the Court of General Sessions and Municipal Court of the City of Wilmington, ‘ ‘subject to the right of the accused to appeal as provided by law in other cases.” (See Section 2 of the Non-Support Act.) The legislature having given to the Municipal Court of Wilmington, an inferior court of the state, existing in 1897, the time when the Constitution was adopted, jurisdiction of the Non-Support Act, the duly established procedure of that court was naturally and properly adopted for the trial of cases arising under that law, including an information there filed in place of an indictment. With equal appropriateness the method of taking appeals from the judgments of the Municipal Court should be adopted, as the most natural meaning of the statute giving to the defendant convicted under the Non-Support Act an appeal “as provided by law in other cases,” viz., in other cases which the Municipal Court had theretofore been given jurisdiction to hear and determine, and with respect to which the judge of that court was not sitting merely as a committing magistrate, but to adjudicate a cause. In the statute respecting the Municipal Court of Wilmington there are two sections to be considered, viz. Section 23 and Section 21 of Volunte 17, Laws of Delaware, c. 207. By Section 23 a person against whom a judgment has been entered in that court for violation of a city ordinance, and who has been committed for failing to satisfy the judgment, may appeal to the Superior Court, and as to procedure the act provided thus:

‘ ‘The filing of a transcript, modes of trial and forms of proceeding shall be as in cases of appeal from the judgments of justices of the peace. ’ ’

In Section 21 of the same act, it is enacted that, if in a prosecution in the Municipal Court for a nuisance affecting the public-streets the defendant by affidavit claims a right of property in the street, further proceedings are stayed in the Municipal Court and the clerk thereof is required to transmit to the Court of General Sessions a copy of the record, ‘ ‘and thereupon the case shall be proceeded in at the next term of said court upon the information set forth in the copy of the said record, in like manner and with like effect as upon an indictment for the like offense.”

[8, 9] Do either of these sections, both of which were in force when the Non-Support Act was passed, provide a procedure for hearing appeals in cases arising under the Non-Support Act? Clearly the latter does not, for it is in no sense an appeal, but is a, change of venue, or transfer of the cause, in advance of a trial thereof. It is equally clear to us that the former section (Section-23) does furnish a theory of procedure, though the appellate tribunal therein mentioned be a civil and not a criminal court, and though a transcript refers naturally to the record of a civil and not of a criminal suit, and though the judgment of a justice of the peace in a civil cause is not analogous to a judgment in the Municipal Court upon conviction of a violation of the Non-Support Act. On appeal from the judgment of the Municipal Court under that act the case is heard de novo in the Court of General Sessions as appeals to the Superior Court from a justice of the peace are heard, including a new information in the appellate tribunal correspond-, ing to the narr. in.the Superior Court. The case of Pratesi v. The Mayor and Counsel of Wilmington, 4 Pennewill, 258, 54 Atl. 694, confirms this view, and is pertinent here, for the offense of which the defendant in that case was convicted below, viz., maintaining a nuisance by obstructing a public street, though it was a violation of the ordinance of the City of Wilmington, was none the less criminal in its nature. The Attorney General had a right therefore to file in the Court of General Sessions a new information against the defendant, Donaghy, and the established practice to such effect is approved.

[10] The next question relates to the variations of the new information from that filed in the court of original jurisdiction. The information filed in the Court of General Sessions differed from that in the Municipal Court in two respects, and they will be considered separately: (1) In the latter the defendant was charged with having committed a certain offense “without just cause,” and in the former ‘ ‘without lawful excuse.” It was urged that by the act there were two kinds of offenses, one by a husband who ‘ ‘without just cause’ ’ refuses to support his wife, and the other by a parent who ‘ ‘without lawful excuse’ ’ refuses to support his or her children. There is so little real difference of meaning between the two phrases above quoted, even in the connection in which they are used, that they must be deemed to be synonymous, and, so far as those quoted words were concerned, not only was there a statutory offense charged in the information below, but there was also no real variation therefrom in the information filed in the appellate court. (2) The other variation between the two informations consisted in the omission from that in the Municipal Court of the name of the defendant’s child, with the non-support of whom the defendant was charged, while in the information filed in the Court of General Sessions the name of the child was stated to be Henry Donaghy.

By the Constitution one accused of a crime is secured in his right ‘ ‘to be plainly and fully informed of the nature and cause of the accusation against him.” Article 1, § 7. Accordingly, it has been held that in an indictment for selling liquor by the small measure ‘ ‘to one-,” the name of the person to whom it was sold must be specified if known, in order to give the accused certain knowledge of the specific offense with which he was charged, though it would have been held differently if he had been charged with a course of conduct or habit, arising from a continuance of acts of the same nature. State v. Walker, 3 Harr. 547. Obviously a charge of an assault must contain the name of the person assaulted for the identification of the person injured, as well as being a material description of the offense. There is no doubt as to the general principle. The wise and wholesome language in Bishop on Criminal Procedure, §517 et seq., quoted by counsel for the defendant in his brief, must ever be had in mind. Without making a full quotation, the author says:

“ * * * Every fact which is an element in a prima facie case of guilt must be stated; otherwise there will be at least one thing which the accused person is entitled to know, whereof he is not informed. And that he may be certain what each thing is, each must be charged expressly and nothing left to intendment. All that is to be proved must be alleged.”

[11] But it does not follow that the information in the Municipal Court was defective in that in charging the defendant with neglect to support “his minor child under sixteen years of age,” it did not state the name of the child. Undoubtedly the information in the Municipal Court must have the same degree of particularity in alleging the offense as is required of an indictment, for which it is a substitute. One important reason for such particularity is the protection of the accused if he be convicted from a second charge for the same offense. -

[12] We cannot agree with the decision of the Texas court in Irving v. State, 73 Tex. Cr. Rep. 615, 166 S. W. 1166, cited by the defendant, where an information which charged the defendant with desertion of his wife, without giving her name, was held defective on that account. Presumably a man has but one wife, and her name is known to him, and to say that he was charged with desertion of an unknown and uncertain person occupying the legal status of a wife. is unfeasonably captious. But the case of State v. Bitman, 13 Iowa, 485, cited by the defendant, is more reasonable. There the defendant was charged with cruelly and inhumanely whipping and beating “his. own child, being about three years old,” without naming the child. A demurrer was filed in the lower court based on this objection and it being overruled and the defendant having been convicted, an appeal having been taken, the appellate court held the information defective by reason of the omission of the name of the child. Theoretically the court in the case cited was right, for there is no presumption that the accused has but one child about three 3'ears old, and he may have others within that description. But practically the omission is not a limitation on his right to be informed of the name of the person with respect to whom the offense was committed. ■ If as is the fact in this case he has but one child, he knows to whom the charge refers. This principle must not be extended beyond the relationship .of parent and child, or husband and wife, for it is based on the peculiar features' of that relationship. It'-follbws that the -new information in the áppellaté court was not-demurrable- there if -the objection: be1 based on the-addition of- the'name1 of the child of the accused,1 and the 'reason of thetebtír'rib'eloXV 'is1 sensible'’and; therefore’,1 abtind: There-was ho efrór ih overruling thé'demtirrer based-on this'point; and the objections-to-the new information!are not sustained.'‘ As pointed-out bythe'brief of'thC'Attorñey'Géneral; -the!-facts of'■the' cas'eS cited by the deféfídatit on this point ÉhOvf that théy áte'hot helpful. f. ' •" ' V'.-

■The solution Of--two-questions which’ temáiti to'be considered.-' depends largely upon questions of fact. It was shown as a4 Tact that- the-defehdanbdid notprovidefdrthe support and'iñáintenance of the child. - - It was- contended, -however; that1 it was not shdwn that 11 'without lawful excuse’ ’ he deserted or failed'tb support the' child or that the child was ‘ ‘in destitute and necessitous circumstances.’’ Was there ‘ ‘lawful excuse’ ’ for the-failureOf-the accused-to-support1 his child? '"v

[13, 14] The excuse given was that his wife Xvould not come with the child to live with him in a place to which he invited her to come. But it sufficiently appears from the evidence, that because of physical violence shown to her by him she was afraid to do so. Under the circumstances, even if the mother did refuse to bring the child to live with his father, there was no legal excuse for the failure of the father to support his child. Undoubtedly a husband has a right to establish the family domicile and in general it is the duty of his wife to live in that domicile, and she loses some of her rights to support in case she unreasonably refuses to do her duty; but there are reasons which may justify her in living elsewhere and fear of personal violence from her husband surely is a proper ■one.

After a careful consideration of the facts, we believe the court below was right in finding there was no lawful excuse for the failure of the defendant to provide for his child, without more fully stating the reasons therefor.

[15] Was the child in destitute and necessitous circumstances within the intendment, purpose and scope of the statute? A -child three years old, having no property, is in ‘ ‘destitute or necessitous circumstances’ ’ when the father can but does not, and the mother cannot, provide for the support of the child, though both mother and child be in fact supported by the child’s maternal grandfather, who was under no legal obligation to furnish such support. This view of the statute, which has been called the humane construction thereof, is based on sound reason, as well as the great weight of authority of courts elsewhere, which have considered statutes almost precisely like that of Delaware. State v. Waller 90 Kan. 829, 136 Pac. 215, 49 L. R. A. (N. S.) 588; State v. Bess, 44 Utah, 39, 137 Pac. 827; Brandel v. State, 161 Wis. 532, 154 N. W. 997.

In Brandel v. State, cited above, the court there announced its view, calling it the ‘ ‘humane’ ’ construction of a statute precisely like that in Delaware:

“A wife is in necessitous circumstances * * * when she does not have property or money available for such necessities or ordinary comforts of life as her husband can reasonably furnish, even though she has the clothing, furniture, and ornaments usually owned by a woman in her station in life or receives aid from others.”

In State v. Waller, cited above, the court said of a similar act:

‘ ‘The essence of the act is that a man shall not be allowed to_ shift the-burden of supporting his wife and children upon others under no obligation tofo ear it, and possibly upon the state itself. Therefore, whenever a husband, without just cause, neglects or refuses to provide for the support and maintenance of his wife and thereby places her in such a situation that she stands, in need of the necessaries of life, it is not material that they are supplied by her own labor or by sympathizing relatives, friends, or strangers, so that she .does not infact suffer from privation. He is guilty if he leaves her in such dr-, cumstances that, without her own efforts or outside help, she would lack the-, necessaries of life.”

In State v. Bess, cited above, the court said:

‘ ‘The fact that the destitution and suffering of the children were relieved by the acts of kind and charitable friends does not, as counsel seem to contend, exculpate the defendant for his dereliction, if he were wilfully derelict in failing to relieve the wants and suffering of the children by providing them with the-' common necessaries of life.”

In this case the court viewed the statute as not only providing a punishment for dereliction of duty of a parent, but also a means of enforcing the continuing liability to provide support. Its. object is not only to protect the state against the effects of pauperism, but also to actually secure to the wife or child money for food, raiment and shelter. This double purpose is evident in the Delaware act, for it provides not only punishment, but also enforces payment of money for wife or child by requiring the parent to give a bond or recognizance for the purpose with surety. Such an act is not made ineffective in cases where other persons provide the support for a wife or child who would be hungry, or naked or unsheltered, unless provided for by the state or by friends, relatives or charitable persons, for the person who ought to pay therefor has not been made to do so. We cannot consent to an interpretation of the act which would relieve a parent from all liability under the act to support his infant child until it was actually starving, naked or homeless. The parent’s liability exists under it when, so far as anything he has done, the child would have starved, become naked or homeless, for in such case the child is in destitute and necessitous circumstances.

The conclusion is, that there is no error in the record and none of the assignments of error are sustained.

The judgment of the court below will be affirmed.

Pennewill, C. J., concurred.