State v. Palese

108 A. 276, 30 Del. 481, 7 Boyce 481, 1919 Del. LEXIS 61

• Court: New York Court of General Session of the Peace
• Decided: November 14, 1919
• Docket: No. 156
• Status: Published

Opinion

Rice, J.:

Under section 3035, Rev. Code 1915, it is provided that—

“Proceedings under sections two to fourteen, inclusive, of this chapter, may be instituted upon complaint made under oath or affirmation by the wife or child or children, or by any other person, against any person guilty of either of the above named offenses. The Court of General Sessions and the Municipal court for the city of Wilmington shall have original and concurrent jurisdiction in all cases arising under said sections, and, unless the accused shall demand a trial by jury, the trial shall in each case be by the court without a jury, subject to the right of the accused to appeal as provided by law in other cases: Provided, however, that the proceeding, under said section, in the municipal court for the city of Wilmington shall be without indictment by grand jury or trial by petit jury.”

As the statute provides that an appeal shall lie on the part of the accused, and makes no provision relative to an appeal by the state, the court is of the opinion that the state does not have the right of appeal from the decision of the court below in cases brought under section 3035. Under another section of the statute, “the court * * * have the power to make an order, which shall be subject to change by the court from time to time, as circumstances may require.” Section 3037. Therefore, if changed circumstances should warrant it the state has the right to ask the court making the order to open the case for a change or modification of the order.

The appeal is dismissed.