dissenting:—“The Municipal Court for the City of Wilmington’ ’ was created and its j urisdiction limited and defined by an act of the General Assembly, passed April 13, A. D. 1883, being Chapter 207, Vol. 17, Laws of Delaware, under authority of Section 15, Article 6, of the Constitution of 1831, providing for the establishment of “inferior courts.” Wilmington v. Vandegrift, 1 Marvel, 13, 29 Atl. 1047, 25 L. R. A. 538, 65 Am. St. Rep. 256.
The said Municipal Court exists under said act, affected only in matters of jurisdiction by Section 30, Article 4, of the Constitution of 1897, and by subsequent acts of the General Assembly authorized thereby. Forbes v. State, 2 Penn. 197, 43 Atl. 626; State v. Churchman, 3 Penn. 361, 51 Atl. 49.
The first question to be determined in this case is whether the act of assembly, entitled ‘ ‘An act relating to desertion and non*502support ,of..yúSe--.hy diusband, .or,-of?children ,by.veither,father,or mother.,, and providing punisbmeht'..ther.eford’-approved.,E§bruary 24 A D 1913,%$i\bewg-\Gkq$ter¡i27, conf^rrmgiUpcpthe.C.our-t of-.G-eneral ¡Sessions,.and the-.said-Munici■pal, Court, original and;.concurrent-jurisdiction -in? aS cases-arising under.theract,,-js.authorized-by'thp-present-CpnstitutÍQny'in,s.o,,far as:it-attempt.s„to;eQnferlj'urisdiction.'Of=th,epífensés,'.¡created by-the act upon the latter court,;,! >-nw --¡¡v,- »? m-i.tir..
■•»vi: A-¡Constitution,-is-?the-..fundamepfali- law? of,í the ;"state.?.,■:v.hs between alstatute^whichús,inconsistent with ,thefGonstitutio.wS- the latter? is. of paramount authority»-and the'former must >yield- ¡thereto - It is‘.generally, recognized that ^Constitution-,shoukb.be construed liberally, s©- a&.to-giveieffectto the,-intention of its framers/ p-ndcarr-y out;.-the principles ¡¡of- government,'; -The..- whole Constitution, however,is ¡to-be examined? ¡with a‘ -view f to ..arriving at-¡the ¡true intention ¡ of > each .part.Ooaley’:s:Const. JJmi. 72« ,(6th ,Ed>i)í¡and Black's Const. Law, 67 (2d Ed;). yív-.í;y¡,i»..'y ,- ¿y
-.Section 30„< Article .4;, of-fhe.prcsenfiConstittition,,.set .forth at length in. the majority opinion;; clearly-and-unmistakably, provides for the establishment ofi ‘/finferioncourts,’ ?,-pf limited,-.special ¡mWnal jurisdiction.
The clause in this provision»> m. ,.■ ? ‘ ‘And such-other misdemeanors as the General Assembly may,” etc., is relied on' .fori legislative power. >foX“ therinvestment??-:of the... Municipal Court;! with: ¡jurisdiction-fob -the: oSenses/.created -by the statute in question. yJ v.-y.A , bO:'/.,,.-:/. 0 ‘ s ¡.-¡‘ f. ;-?'. ■;;!
mi -,r >By-Cediont¡lyArticlg^it is provided that.:, X-;1- -yu-yncX yu?:>X
'*■" '‘Íhe’-judicíál power of this state ábafi'be vested in "¿'Supreme éóiirt; a Superior Court, a- Court of-Chancery, ian'.OrphanS'- Gourt, a Court-of ;Oyer and Terminar» -a Court of Genera(.SessipnSi,a Register’s Court, justices?of thp.geace and such othér courts abthe General’Assembly' **■*’ * ’ shall from time1 to time by law'éstablishj’!’,--?. ..-.y.";. » i-- ■>>r,í.-jV- ,y;.V
- ."ryStatufory, repurtsy authorized yby- this- section? may? be, given jurisdiction:of civil Or er-iminabmatters, or -both;,-a-nd- jurisdiction of criminal matters conferred' upon any- such1 court,, -¡mayt not -necessarily? be ...limited and-.confin.ed. like, that .of ¡inferior? courts authori-zedi.by:section 3,0:,;-! ». >./. y.-?- , . ,-;?;;i .r-,..- ¡r- , .
*503, ,By Section 8, Article 4, it is provided that:
• ‘ ‘The Court of General Sessions shall have all the jurisdiction and powers veste,d_ by the laws of this state in the Court of General Sessions of the peace and jail delivery.”
The "latter1 court is a constitutional court and had vested in it’by the lfiws of "this' state; at the time of the adoption of the Constitution, within the several counties, general ‘ ‘jurisdiction of all crimes arid Offenses not within the jurisdiction of the Court of Oyer arid Terminér; "• * #■*’•’ • • .......
‘ ’" 'By Section 20, Article 4, it is provided tbat: ,'t
“The General Assembly , * * *. shall have power to repeal or alter any act, _* * *. giving jurisdiction to the Court of Oyer and Terminer, the Superior Court, the'Court of General Sessions of the péace and jail delivery, the Orphans’ Court or the Court of Chancery, in any matter, or giving any power to either of the said courts. The General Assembly shall also have power to1 confer upon * * * the said several courts jurisdiction and powers in addition to those hereinbefore mentioned," ...... . , ,
This section makes provision for changes in the .jurisdiction of the several courts named, but it clearly does, not, bestow upon the General Assembly power to transfer, jurisdiction conferred upon the Court of General Sessions ,to any .inferior > court established under Section 30, the jurisdiction of which is derived, from, limited and defined by the last mentioned section. It is. to. this latter section, one must look for the origin and jurisdictiQn.pf any inferior court established or to be established tfiereunder.. . . ...
In this state all criminal offenses are divided, into two, general classes,—felonies and misdemeanors. All felonies here were expressly and specifically made so by statute in each- case. State v. Darrah, l Houst. Cr. Cas.112. It.now yery rarely happens-that new offenses are made felonies. By far ..the greater number of offenses were and, are made misdemeanors,, and many of. them involve more turpitude than some felonies. : ...;
If the framers of the present ,Constitution ha.cl.it in mind to clothe the General Assembly with power to invest, any inferior court, authorized by said Section 30, with criminal jurisdiction of every offense denominated a misdemeanor,, then, if the Legislature slioufd see fit to change offenses now deemed by law .felonies into *504misdemeanors, the entire jurisdiction of offenses now conferred upon the Court of General Sessions could be transferred to such inferior courts, to the exclusion of the Court of General Sessions, and without trial by jury except on appeals.
The grant of such power is plainly inconsistent with the idea of such inferior courts, and is not embraced within the letter, spirit or intent of the Constitution.
The General Assembly is not clothed with any such power as suggested. Indeed it is inconceivable that the framers of the Constitution contemplated such a thing. Statutory courts, created under Section 1, Article 4, if they should be established, would not be ‘ ‘inferior courts,” within the meaning and purview of said Section 30. Herein lies the distinctionbetween the statutory courts ■provided for by the Constitution. Those provided for under Section 1, Article 4, may be courts of very general jurisdiction of civil or criminal matters, or both; those provided for under Section 30 are eo nomine “inferior courts’’ of limited, special criminal jurisdiction.
The true intention and meáning of the phrase, “and such other misdemeanors’ ’ must be gathered not only from its position and relation to the qualifying words in the provision of the Constitution in which it is contained, but from the other provisions of the Constitution as well, vesting the judicial power of the state. Does the phrase limit the power of the General Assembly in the general kind and character of offenses, of which, if made misdemeanors, any inferior court established under said Section 30, may be given jurisdiction? Considerations of convenience, economy and the like, however desirable, should have little weight, if any, in determining the proper interpretation of said phrase. There are graver and more serious considerations involved,—the intention of the framers of the Constitution, which must be ascertained from the Constitution itself; the public welfare; and the interests and welfare of persons accused. It must be determined whether the specific offenses enumerated in the provision of the Constitution providing for inferior courts, within the intention of the latter provision and other provisions of the Constitution respecting the judicial power of the state, limit and confine the scope and meaning *505of said phrase as misdemeanors of the same general kind and character to those specifically mentioned, though the latter are not of a class, but different in nature and characteristics.
The offenses enumerated in said Section 30, are not necessarily of a serious character. Assaults and batteries, may, at times, be aggravated, but ordinarily they are not. Carrying concealed a deadly weapon was, at the time of the adoption of the Constitution, a minor offense like the other offenses enumerated in said section. It is true that the legislature has enlarged the penalty for carrying concealed a deadly weapon, not, however, because the act itself is serious, but because of the consequences which often follow, or are likely to follow the act of so carrying. So that it may be said that the offenses enumerated in said Section 30 are in criminal classification and in fact minor offenses.
Apart from these considerations, it may be asked why the Constitution specifies certain offenses if it meant that such inferior .courts might be given jurisdiction of any and all misdemeanors?
The act in question creates new offenses,— new misdemeanors, •■unknown as such to the criminal laws of this state before its enactment. By said act, desertion or neglect to provide for a wife by husband, or desertion, wilful neglect; or refusal of any parent to support his or her legitimate .or illigitimate child or children, under the age of sixteen years, in destitute or necessitous circumstances', is made a misdemeanor, punishable by a fine not exceeding five hundred dollars, or by imprisonment with hard labor, not exceeding one year, or both. Upon conviction the court may, in its discretion, instead of imposing the penalty prescribed, or in addition thereto, make an order directing the accused to pay a certain sum periodically to the wife, or to the guardian, or custodian of such child or children, or to an organization, or individual approved ■' by the court as trustee, and to release the accused from custody . on probation, upon entering into a recognizance, etc.
It may fairly be said that this act is in purpose both criminal and civil,—criminal, in that it punishes for the offenses defined therein, when committed, by fine or imprisonment, or both; and . civil in effect, in that it provides a remedy for the enforcement of . civil liabilities.
*506; The penalty fqy, _ the , several, o^enses, .enymerated Jtu.saijl Sectipn,50 is a fine, or ¡imprisonment,,or both;.apd .clearly nothing-more is contemplated. ...
.Therpis.nothing in-the prpvisipp. eyincipg,any,intention to invest any. inferior pourt,, established pr to .be, established.,therp- , under, with jurisdiction and power such as is vested by the statute in question., «■.. J "r,
, It was urged,.for the.accused that,an order.piade,under .act for the payment of a certain sum periodically for support and maintenance, instead of a fine, exceeding ope hundred. dollars,, or imprisonment, exceeding one nmnth,,jiad,the effect, to- defeat ¡the right of .appeal, though .the aggregate amount, to .be paid under .the order woulcl exceed one hundred dollars. . This may be so,,.but, it should not be, in view of the proviso in- said Section 30, expressly providing for appeals, if it,,should .appear that, the .aggregate .amount, likely pp be paiij under, an. order.fpr,support, will exceed one hundred dqllars.. ... .. , . ... :
In the argument for. the state the jurisdicitipn conferred by the statute in,question was likened to that given to justices, of ¡the peace by statute in relation.to bastard children. ..The analogy,.,if there be any, is not manifest.Co,urts¡of justices.of the peape.are constitutional courts of, ancienj. minor .powers and jurisdiction, left, however, largely to legislative discretion as ,to such matters, including those criminal matters, which may .be conferred .upon them under Section, 30,. Jurisdiction of bastardy cases may not be .conferred under authority of said .section, and it.bears no relation to the question here. . , ' , . .. . .,,
It was also urged, that the offenseg, .enumerated ,in said Section , ,30 .have no common analogy to each other,, in .that the only relation , which they, bear to each other, is .that they are within a clags. of ' .offenses known as misdemeanors; and,that they, pannot be classified as “petty misdemeanors,” because, there, is. ,qo.,such classification. It was further.,urged that the said, phrase .is broad and unlimited , except in three particulars; - (1) That jurisdiction can never, be conferred on inferior courts. except, by a tyro-thirds vote of ..the members of ,the General Assembly;,. (2). Juris,diction can never, be conferred upon an inferior court of a crime deemed a felony;, and.. *507.(3) , The. .General Assembly cannot .prohibit- or prevent an appeal in any ¡case where.the,punishment, exceeds one. month’s imprisonment -or- one. hundred dollars fine: < vjq,. -.
¡. iIt is not necessary that.the enumeratedoffenses in the. provision in which .the ,phrase is contained should have, a common analogy •to each' other,* or that they should be classed, as ‘-‘petty-misdemeanors,” in- order-to, have a ¡qualifying effect upon the phrase*: if such effecfi.is in-fact manifest.. Neither-can it .be assumed that the .phrase.is, broad and- unlimited, except in the three particulars mentioned, if the true intention of the several provisions* of the Gonstitution. vesting,the judicial power- of this state,, considered together,--shows the-Contrary. , The - examination made-¡of-.the several provisions does: not. disclose an intention, on the.part, of the framers of-the, .Constitution, to invest-the General-Assembly with power, subject ,.to,;the exceptions1'mentioned, -.to give jurisdiction of .any .and, all. misdemeanors to-any inferior court which may be established under saidAecíúwflQ.. -If such a thing had been contemplated-b-y the .framers of the Constitution,-they doubtless would have employed -theword.' ‘any;” -or some: equivalent fully expressing such intention,- -or-rather, indeed* there would .-have -been no enumeration.of offenses in said.se'ction. ,
I am.unable to. reach .the.-conclusion that the framers-of-the -Constitution meant-to include in- the phrase,relied on.any or"all misdemeanors, -not being, Satisfied, after,painstaking consideration, that-the power to.give jurisdiction of the many varied and important-misdemeanors -to the -Municipal-Court-is,-plainly and.-fully conferred.-: i I am therefore of, the opinion,,"for the reasons assigned, .that the misdemeanors.defined-in sai<k'-Ghapter- -262* Voh’2Z-,-Daws of Delaware, cannot be- conferred upon said Municipal Court, .within the -intention of/the enumeration- of the particular misdemeanors in.said Section- .30, and in contemplation of the general investment of judicial-power.-by the.-Gonstitution-.of-this-state; ■-.
. ' In view of- my position oil the first question and the length of its discussion, I am constrained' to. consider-briefly parts, only of the two remaining questions.- a
:• First; "assuming--that .on appeal -from the judgment" of ¡the Municipal Court, the prosecution is" heard be novo in the Court .of *508General Sessions as are appeals to the Superior Court from justices of the peace in civil actions, the prosecution is, nevertheless, the same as the one upon which the judgment was entered below. On appeals in civil cases the practice is well settled that the pro-narr. must conform to the transcript. And if it should appear that the pro-narr. fails to correspond with the record of the case below in the cause of action, the court will, on motion, set it aside for irregularity. McDowell v. Simpson, 1 Houst, 467; Lord v. Townsend, 5 Harr. 457; Townsend v. Steward, 4 Harr. 94; Norton v. Janvier 5 Harr. 346.
By analogy, if a new information may be filed in criminal appeals, this settled practice must be applied for the reason that the appeal must be a trial of the same cause as was tried below. 12 Cyc. 342; 1 A. & E. Ency. of Law, 627; Com. v. Blood, 4 Gray (Mass.) 31; and Com. v. Phelps, 11 Gray (Mass.) 72.
If the original offense, as shown by the record below, and on which the accused was tried, can on appeal be abandoned, and another and distinct offense substituted in its place, and support it by proof, then, as was said in Com. v. Blood, supra, ‘ ‘it is obvious that the right of appeal, which was intended solely as a benefit and privilege to the party charged, might often be converted into a burden, and a snare.” On the same principle if the information filed below is fatally defective in the description and identification of the offense intended to be charged, the information filed in the Court of General Sessions may not include other and distinct allegations necessary to meet the requirements of law. Every element necessary to show a prima facia case of guilt must be alleged in the information in the first instance before there can bé a valid conviction. 1 Bishop, Crim. Pro. §517.
If the conviction below was invalid because of a fatally defective information there can be no trial in the Court of General Sessions, on appeal, either with or without a new, sufficient information, for want of jurisdiction, though the latter court might have had original jurisdiction of the offense.
Again, it is a well recognized rule of criminal pleading that not only the name of the accused when known but that of the injured third person must be alleged in the indictment or information with *509certainty; for it is necessary to clearly specify the particular offense so that the accused may be informed of the exact charge which he has to meet, and that the offense may be identified. On appeal, as already shown, the pleading in the lower court must b,e adhered to, and the new information may not describe a different offense as by the insertion of the name of the injured, or third person, or other essential allegation.
This general principle is recognized as wise and wholesome by the majority opinion; but it is said that ‘ ‘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,” and the reason assigned is ‘ ‘if as a fact he (the defendant) has but one child he knows to whom the charge refers.”
I know of no rule of criminal pleading requiring the accused to make such inference. He is entitled to know upon what individual he is supposed to have committed the alleged offense and if this does not clearly appear it is his right to move to quash the information for insufficiency as was done in this case. If his motion be denied and he is put on trial, and is convicted, he has the right by certiorari, which is addressed to errors of law, and not to the evidence adduced at the trial, to test the validity of the conviction. I do not deem it wise to depart from a principle of criminal pleading so generally recognized even in favor of “the relationship of parent and child, or husband and wife’’ though “based on the peculiar features of that relationship.”
Second, I cannot agine with the majority of the court in the disposition made of the phrase “in destitute or necessitous circumstances,” contained in the statute. I think the conclusion reached has the effect to eliminate the words of the phrase from the statute,—words, in legislative contemplation and purpose, intended to have the force and effect naturally to be gathered from the language employed. If they were intended to mean nothing, it is fair to assume that they would not have been incorporated in the act. The fact that a child is ‘ ‘in destitute or necessitous circumstances’ ’ is a matter which must not only be averred in the indict*510ment or information, but must be proved; and -the fact may be disproved by any competent testimony. • ■ -
Again, the husband had the right reasonably to establish the domicile of his family. If the wife and her child lived with her parents separate and apart from'her husband, it was competent to inquire of her on cross examination, ‘ ‘Are you willing to take your child to your husband and live with him in a home provided • for by him?” This and other questions asked the wife; affecting the marital relations, and their bearing upon the question of whether the husband was or was not ‘ ‘without lawful excuse’ ’ for not supporting the child, as well as the question of the necessities of the child, were of matters gone into on the examination in chief, and were either pertinent and relevant, and should have been allowed, in view of the testimony of the wife in her direct examination, or the latter testimony should have been stricken out, on the motion made therefor.
It is incumbent upon the state in a prosecution to prove every essential element of the crime charged beyond a reasonable doubt. The record does not disclose that the husband was not without lawful excuse for not supporting the child, or that it was in destitute or necessitous circumstances within the intent and meaning of the act.
I am of the opinion that the judgment below should be reversed for want of jurisdiction, as well as for the other reasons assigned.
The foregoing opinions having been filed for inspection, the attorney for the plaintiff in error, before the signing of the decree, presented his petition to the court, praying for a re-argument and reconsideration of the decision of the court as contained in its opinion, and as grounds therefor represented as follows:
That the decision in this cause is a decision by a divided court.
That the decision of the majority of the court raises at least one question which was not argued.
That the time allowed for argument in the Supreme Court was considerably less than that provided in the rules and was insufficient for a thorough presentation of the many important questions involved in the cause.
That the general phrase construed in the case of Hull, 18 Idaho, 475, 110 Pac. 256, 30 L. R. A. (N. S.) 465, was not “or other such” as it might seem from the brief of your petitioner and as is stated in the opinion of the majority *511of the court. This case was cited because of its clear statement of the doctrine of ejusdem generis. The statute there construed was:
‘ ‘It shall be unlawful for any person or persons in this state to keep open on Sunday any * * * theatre, play house, dance house, race track, merry-go-round, circus or show, concert saloon, billiard or pool room, bowling alley, variety hall, or any such place of public amusement. * * * "
That the decision of the majority of the court with regard to the constitutional question as to the jurisdiction of the Municipal Court is inconsistent, because the decision first holds that the misdemeanors specified in the Constitution are not ejusdem generis and then recognizes a test which serves completely to differentiate the misdemeanors of the Constitution from that in the statute. In other words, the decision fails to consider the punishments affixed by the General Assembly yet states that a ‘ ‘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.” It is respectfully submitted that this double purpose—this commingling of punishment with the enforcement, by criminal procedure, of a civil liability over which the Municipal Court can have no jurisdiction—takes the misdemeanor of the statute out of the genus of the Constitution. The misdemeanors specified in the Constitution are all punishable only by fine, or imprisonment, or both, whereas the misdemeanors of the statute are punishable by fine or imprisonment, or both and the enforcement of a civil liability; and if the punishment fixed by the General Assembly may not be a means of determining the genus, then it will be quite possible for the General Assembly to give to the Municipal Court jurisdiction of newly created misdemeanors for which the whipping post or the specific performance of contracts are the only punishments. Hence it is respectfully submitted that the decision of the majority of the court leaves the jurisdiction of the Municipal Court limited only by the discretion of the General Assembly and not by the Constitution of the State of Delaware.
That if appeals to the Court of General Sessions are to be founded upon the law and practice of appeals to the Superior Court from justices of the peace, the judgment of the Court of General Sessions, in this cause must be either reversed or corrected because it dates back to the date of conviction in the Municipal Court. If the trial is de novo, the judgment is de novo. This error of the Court of General Sessions was assigned * * * and attention was called to it in the brief of your petitioner. * * * It was not argued because of the limited time and it is not considered in the decision of this honorable court. It is respectfully submitted, however, that the affirmation of the judgment would amount to holding that a judgment of the Superior Court may be dated back to the date of the justice’s judgment so as to bind the lands and tenements of (the defendant from that date.
That the decision of the majority of the court in holding that the information in the Municipal Court was not fatally defective for want of the name of the injured party has failed to follow the established rule of law. The learned Attorney General could not cite a single case in which such an information had been held to give jurisdiction. Your petitioner can find no authority for an exception to the uniformly settled rule that the name of the injured party is necessary to the identification of the offense. Your petitioner can find no authority for an exception founded on the relation of parent and child or husband and wife. Your petitioner can find no authority for an exception founded on thefact that the accused must have known who was meant. The mass of authorities on this subject involving any and every relationship were not presented to this honorable court: First, because the rule of law seemed unquestionably settled; and second, because your petitioner was not anxious *512to win this case on one point only which might merely postpone the litigation. Now, however, when there is a likelihood of the creation of an exception to the rule under consideration, your petitioner desires respectfully to call attention of this honorable court to the reason that there can be no exception to the .rule.
A man is accused of deserting ‘ ‘his wife’ ’ as in the case of Irving v. State, 73 Tex. Cr. Rep. 615, 166 S. W. 1166, with which the majority of the court disagrees. Presumably a man has only one wife and her name is known to him, hence at first sight it might be said that he is ‘ ‘plainly and fully informed of the nature and cause of the accusation against him.” But he is not, for the mere fact that he is charged with deserting ‘ ‘his wife’ ’ does not inform him that the prosecutrix is the person whom he knows to be his wife. He prepares, for instance, his defense as against Mary Doe, his lawful wife, and at the time of trial he is prepared to meet any charges which she may make, but the person who appears in court as the prosecutrix is not Mary Doe but Jane Roe who claims to be the wife of the accused. It is then apparent that the defenses which have been prepared are unavailing, that the issues have been entirely changed, that the real question is then whether Jane Roe is the wife of the accused, and that the accused whs not ‘ ‘plainly and fully informed.” Under such circumstances it is respectfully submitted that this honorable court would have made no exception founded on the relationship of husband to wife. The reason for the rule and the necessity for its universal application would have been most obvious and the court would have followed the Texas case.
Whether your petitioner was injured in this case by the omission in the information is not the test. One accused of an assault or any other offense may not be injured by a similar omission for he may know who is mea’nt and he may be convicted with due regard to the merits of the case and the welfare of the community. Nevertheless it would not be held by this honorable court that the trial court had jurisdiction or that the conviction was lawful. In other words, the test cannot be whether the accused ought to be presumed to have known whom he has injured, but it must be whether the accused was plainly and fully informed. The test cannot be theoretically correct in State v. Bitman, 13 Iowa, 485, and practically wrong in the case of Donaghy v. State. It is respectfully submitted that the decision of the majority of the court breaks open a most dangerous gap in the ancient wall of protection built around an accused both by the authorities and the Constitution; and it is further respectfully submitted that not o'nly the weight of authority but all authority supports the contention of your petitioner that the Municipal Court was without jurisdiction of this cause.
That the majority of the court has misconceived the question pertaining to the phrase ‘ ‘without lawful excuse.” Although it is true that the want of lawful excuse depends upon a state of facts, the question is not whether such a state of facts does sufficiently appear from the evidence, but whether such a state of facts can lawfully and sufficiently appear from the evidence when the' Court of General Sessions held that evidence of physical violence was proper only ‘ ‘to show a leaving in the first place’ ’ and then sustained objections to questions which might have proved the evidence untrue. If fear of personal violence constitutes “lawful excuse,” it is respectfully submitted that this, honorable court must decide that the Court of General Sessions erred in not. admitting testimony which bore upon the fear of personal violence. If, on 1 the other hand, the marital relations are immaterial where the child is concerned, it is respectfully submitted that this honorable court must decide that the Court of General Sessions erred in considering the testimony with regard to personal violence and this honorable court must hold that the state showed . no want of lawful excuse. The dilemma is clear; it is not sophistical; it is *513not captious. The evidence concerning personal violence was either material or immaterial. If material, the Court of General Sessions should have given the accused every opportunity to show that there was no personal violence. If immaterial, the Court of General Sessions should have stricken from the record all testimony concerning it and should have held that the state had failed to prove its case. In other words, the fact that this honorable court has deemed the alleged ‘ ‘physical violence’ ’ of importance makes it clear that the Court of General Sessions erred.
That the majority of the court has been misled by the authorities supposed to support the so-called ‘ ‘humane’ ’ construction of the phrase ‘ ‘in destitute or necessitous circumstances.” An examination of the authorities cited shows that the case of Brandel v. State, 161 Wis. 532, 154 N. W. 997, relies upon the case of State v. Waller, 90 Kans. 829, 136 Pac. 215, 49 L. R. A. (N. S.) 588, which overrules the established rule of law that a penal statute is to be construed strictly. These two cases may be regarded as authority for the ‘ ‘humane” construction; but it is respectfully submitted that they are counterbalanced both in logic and in weight by the case of State v. Thornton, 232 Mo. 298, 134 S. W. 519, 32 L. R. A. (N. S.) 841, and the Georgia cases, and it is further submitted that the reasoning in the Brandel and the Waller cases was drawn from cases where the statute contained no qualifying phrase whatsoever.
In the case of Poole v. People, 24 Colo. 510, 52 Pac. 1025, the statute was as follows: ‘ ‘It shall be unlawful for any man, residing in this state, to wilfully neglect, fail or refuse to provide reasonable support and maintenance for his wife.”
Indeed, the court in that case commented upon the fact that under such a statute the accused was not relieved from furnishing support no matter what were the financial means of the wife.
In People v. Malsch, 119 Mich. 112, 77 N. W. 638, 75 Am. St. Rep. 381, the statute read: ' ‘All persons who, being of sufficient ability, refuse or neglect to support their families. * * ”
In State v. Witham, 70 Wis. 473, 35 N. W. 934, the statute construed was similar to that in People v. Malsch.
In Burton v. Commonwealth, 109 Va. 800, 63 S. E. 464, the evidence was held insufficient to show that the wife was in destitute or necessitous circumstances and the questions of support by others and of the construction of the statute were not even touched upon.
Nevertheless these cases are now in the opinion of the majority of the court and were cited in the case of State v. Bess, 44 Utah, 39, 137 Pac. 829, to sustain the ‘ ‘humane’ ’ construction. An examination shows that the suggestions of the court in State v. Bess amount to unsupported obiter; for in. that case the judgment of conviction was reversed and in addition the court found, as a matter of fact, that under the strict construction of the statute as contended for by the defendant, the children were nevertheless actually in destitute circumstances. Owing to the lack of time allowed for argument there was no opportunity to call the attention of this honorable court to these cases in detail; but it is respectfully submitted that the so-called ‘ ‘humane’ ’ construction is not compatible with the established rule of law applicable to the construction of penal statutes, that this construction is not supported by the weight of authority of courts elsewhere, and that this construction can have no other effect than to strike the phrase from the statute. .
Wherefore, to the end that these errors may be corrected, your petitioner again respectfully prays that this honorable court shall grant a re-argument both on brief and orally and that the said decision may be reconsidered and amended accordingly.
By his Attorney. * * *
*514To which was added a certificate:
‘ ‘That in my judgment, the foregoing petition is well founded, and that the same is not interposed for delay.” * ■* * *
The prayer of the petitioner was granted, and the cause was set down for rehearing and re-argument at Dover, on the twenty-second day of December, A. D. 1916.
Re-argument of Counsel for Plaintiff in Error.
The contention of the plaintiff in error is that the doctrine of ejusdem generis is applicable to the construction of the general words in Article 4, § 30, of the Constitution.
That the misdemeanor defined in Chapter 262, Vol. 27, Laws of Delaware, is not within the genus of the misdemeanors specified in the article of the Constitution heretofore mentioned. It is readily admitted that there are many differences between assaults and batteries and an offense against the revenue laws, such as keeping without license a tavern, but it is insisted that there are characteristics common to all of the misdemeanors specified in the Constitution and that the misdemeanor under consideration lacks those common characteristics. These characteristics are: (1) The misdemeanors specified in the Constitution are all punishable by summary convictions at common law. (2) The misdemeanors specified in the Constitution are all ‘ ‘petty’ ’ misdemeanors. (3) The misdemeanor's specified in the Constitution are all punishable by fine or imprisonment, or both. (4) The misdemeanors specified in the Constitution are all common law offenses.
The misdemeanors specified in the Constitution are all punishable by summary convictions at common law. 4 Black. Con. 280.
The misdemeanors specified in the Constitution are all ‘ ‘ petty’ ’ misdemeanors. Such a classification has been recognized since the very early days of the common law- and that the phrase ‘ ‘petty misdemeanors’ ’ is used whenever summary convictions are referred to.. 12 Cyc. 321; Bishop’s Crim. Pro. §§ 152 and 153; Low v. U. S., 169 Fed. 86, 89, 90, 94 C. C. A. 1; Pearson v. Wimbish, 124 Ga. 701, 52 S. E. 751, 756, 4 Ann. Cas. 501; Schick v. U. S., 195 U. S. 65, 24 Supt. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas. 585.
*515The framers of the Constitution intended to confine the jurisdiction of inferior courts to such petty misdemeanors as have always been punishable by summary convictions.
The misdemeanors specified in the Constitution are all punishable by fine or imprisonment, or both.
The nature of the punishment determines the genus of the crime. The misdemeanors specified in the Constitution are ejusdem generis in punishment. Whereas the misdemeanor of the statute is punishable not only by fine or imprisonment or both, but also by the enforcement of a civil liability.
This double purpose—this commingling of punishment with the enforcement by criminal procedure of a civil liability, over which the municipal court can have no jurisdiction—takes the misdemeanor of the statute out of the genus of the Constitution and serves completely to differentiate them.
The framers of the Constitution did not intend to leave the jurisdiction of inferior courts limited only by the discretion of the General Assembly and not by the Constitution of the State of Delaware, for if the framers had intended the general words of Article 4, § 30, to be used in their unrestricted sense, they would have made no mention of the particular classes which they had in mind. 36 Cyc. 1119, 1120.
Granting that the words, ‘ ‘such—as,” amount to the relative pronoun -“which,” nevertheless the word “misdemeanors” is modified by ' ‘other,” and even if the framers had gone still further and said ‘ ‘any other’ ’ or ‘ ‘all other,” the doctrine of ejusdem generis would be applicable, provided the misdemeanors mentioned were species of some well recognized genus.
The case of Hull, 18 Idaho, 475, 110 Pac. 256, 30 L. R. A. (N. S.) 465, has been cited to the court not only because of the broad language used in the statute there construed, but also because of the clear reasoning of the court. See, also, U. S. v. Garretson (C. C.) 42 Fed. 22; State v. Goodrich, 84 Wis. 359, 54 N. W. 577; Ex parte Williams, 87 Pac. 565.
The misdemeanors specified in the Constitution are all common law offenses.
It has been held that where the actions mentioned in a statute *516were all known to the common law, the phrase, ‘ ‘other actions”, would be limited by the genus. Valentine v. Boston, 20 Pick. (Mass.) 201.
All the misdemeanors'in Article 4, § 30, of the Constitution are ancient offenses which have commonly been punishable by summary convictions. At the time of the adoption of the Constitution there were other ancient offenses belonging to the same genus which were not specified in Article 4, § 30. For example, the punishment of those found drunk or excited by liquor and noisy in a public place, or of profane swearers or of those who shall use abusive, railing or threatening subjects against a magistrate, or of those who perform worldly employment, labor or business on the Sabbath Day, was not included by the framers of the Constitution.
Such offenses as these and only such offenses as these "are ejusdem generis with the misdeanors specified in the Constitution, and that the phrase, ‘ ‘other misdemeanors,” must be construed by this court to include only such misdemeanors.
Granting that the doctrine of ejusdem generis does not apply where the specific words signify subjects greatly different from one another, nevertheless, where a genus is obvious, it is respectfully submitted that the court cannot avoid the rule by pointing out the dissimilarities which exist between the species constituting the genus. Reg. v. Cleworth, 4 B. & S. 927; Sandiman v. Breach. 7 B. & C. 96; Peate v. Dicken, 1 C. M. & R. 422; St. Louis v. Laughlin, 49 Mo. 559.
The well-known case of Casher v. Holmes, 2 B. & Ad. 592, held that where an act imposed certain duties on ‘ ‘copper,- brass, pewter, and tin, and on all other metals not enumerated,”' the latter words did not include gold and silver. Here the language was broad enough to have included any metal, and there are many characteristics of each of the metals enumerated which are not common to the others, but the court held that there was a genus intended which did not include the so-called precious metals.
It is respectfully submitted that the cases previously" cited by the state are not applicable in a determination of this case, because the misdemeanors specified in the Constitution do belong to the genera above pointed out.
*517In the case of Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann. Cas. 1914C, 302, there was no genus. In the case of Brown v. Cor. Corbin, 40 Minn. 508, 42 N. W. 481, there may have been a genus, but the court held that the phrase, “other lawful business,” was intended as a catch-all, by reason of the fact that several amendments had previously been made in order to make the statute as exhaustive as it was intended to be.
The case of McReynolds v. People, 230 Ill. 623, 82 N. W. 945, is contrary to Bucher v. Commonwealth, 103 Pa. 528, and the case of State v. Eckhardt, 232 Mo. 49, 133 S. W. 321, was decided as it was largely because the statute in question practically followed the New York statute, although the latter statute named many more places where the crime of abandonment could take place. The case of U. S. v. Bevans, 16 U. S. 336, 390, 4. L. Ed. 404, the case of In re Kelly (C. C.) 71 Fed. 545, 550, and the case of Jones v. Gibson, 1 N. H. 266, 272, are contrary to the case of State v. Eckhardt, cited supra.
If appeals to the Court of General Sessions are to be founded upon the law and practice of appeals to the Superior Court from justices of the peace, the judgment of the Court of General Sessions must be either reversed or corrected.
The Court of General Sessions on January thirty-ñrst, 1916, adjudged the plaintiff in error guilty, and nevertheless ordered him to make payments for the support of his minor child, beginning on the third day of March, A. D. 1915. The Court of General Sessions should have either reversed or affirmed the judgment of the Municipal Court, or the Court of General Sessions should have ■entered a proper judgment de now.
The information in the Municipal Court was fatally defective for want of the name of the injured party.
The court has followed the Court of General Sessions by holding that the new information in the appellate court was not demurrable because of the addition of the name of the child of the accused. The important question is not whether the new information was demurrable, but whether the information in the Municipal Court was not so fatally defective as to fail to give jurisdiction.
Persons other than the defendant and particularly the persons *518injured are universally required to be alleged in criminal proceedings for the identification, as well as the material description of the offense. State v. Walker, 3 Harr. 547; State v. Pollock, 105 Mo. App. 273, 79 S. W. 980; Morningstar v. State, 52 Ala. 405; State v. Irvin, 5 Blackf. (Ind.) 343; Butler v. State, 5 Blackf. (Ind) 280; 1 Chitty Cr. Law, *213; Bac. Abr. Indict. G. 2; 2 Hawk. P. C. c. 25, § 71; 10 Enc. Pl. & Pr. 505, 506; Joyce on Indictments, §354.
The court has recognized the general principle, but has made an exception in the case of parent and child and the husband and wife, based on the peculiar features of that relationship. The cases of State v. Bitman, 13 Iowa, 485, and Irving v. State, 73 Tex. Cr. R. 615, 166 S. W. 1166, are directly opposite to such an exception, and it is respectfully submitted that these cases are not only theoretically but practically correct. The case of -Irving v. State involved unnamed minor children as well as an unnamed wife.
The rules of criminal pleading demand exact certainty and not certainty to a common intent.
The Court of General Sessions erred in its rulings on the testimony pertaining to physical violence.
The evidence concerning personal violence was either material or immaterial. If material, the learned Court of General Sessions should have given the accused every opportunity to show that there was no personal violence. If immaterial, the learned Court of General Sessions should have stricken from the record all testimony concerning it and should have held that the state had failed to prove its case. The fact that this honorable court has deemed the alleged physical violence of any importance whatsoever makes it clear that the learned Court of General Sessions erred.
What constitutes “in destitute or necessitous circumstances," under Section 1, Chapter 262. Vol. 27, Laws of Delaware!
There are two authorities which strike the words “in destitute or necessitous circumstances” out of the statute by judicial construction. State v. Waller, 90 Kan. 829, 136 Pac. 215, and Brandel v. State, 161 Wis. 532, 154 N. W. 997.
*519The former case expressly overrules the established principle of the law that a penal statute is to be construed strictly, and the latter case relies upon the former. These two cases may be regarded as authority for the so-called “humane" construction, but it is respectfully submitted that they are counterbalanced both in logic and in weight by the case of State v. Thornton, 230 Mo. 298,134 S. W. 519, the Georgia cases, and other cases hereafter cited. It is further submitted that the reasoning in the Brandel and the Waller Cases was drawn from cases where the statute contained no qualifying phrase whatsoever.
Thus, in the case of Poole v. People, 24 Colo. 510, 52 Pac. 1025, the statute was as follows:
“It shall be unlawful for any man, residing in this state, to willfully neglect, fail or refuse to provide reasonable support and maintenance for his wife.”.
Indeed, the court in that case commented upon the fact that under such a statute the accused was not relieved from furnishing support no matter what were the financial means of the wife.
In the case of People v. Malsch, 119 Mich. 112, 77 N. W. 638, 75 Am. St. Rep. 381, the statute read:
‘ 'All persons who, being of sufficient ability, refuse or neglect to support their families. * * * ’'
It is obvious that under such a statute there can be no question of whether the- neglected family is in destitute or necessitous circumstances.
In State v. Witham, 70 Wis. 473, 35 N. W. 934, the statute construed was similar to that in People v. Malsch.
In Burton v. Commonwealth, 109 Va. 800, 63 S. E. 464, the evidence was held insufficient to show that the wife was in destitute or necessitous circumstances, and the question of support by others and of the construction of the statute were not even touched upon.
Nevertheless, these cases were cited in the case of State v. Bess, 44 Utah, 39, 137 Pac. 829, to sustain a mere dictum supporting *520the so-called humane construction. An examination shows that the suggestions of the court in State v. Bess amount to obiter, for in that case the judgment of conviction was reversed and in addition the court found that “even under the construction of the statute as contended for by defendant, the children involved were in destitute circumstances,” and the court further said:
‘ ‘In criminal proceedings, it must be established by the evidence beyond a reasonable doubt that the children were in destitute and necessitous circumstances and that the defendant without just excuse- wilfully neglected and refused to provide .for their support, before the defendant can be, legally convicted.”
It is admitted that the Georgia statute is not exactly like our own, but in the following cases, the question whether the father is guilty if he fails to provide for his child after the separation, even though the child may be abundantly supplied with all necessaries of life, was considered and the courts held that the father cannot be convicted unless it be shown that the child was not only dependent, but in a destitute condition. Dalton v. State, 118 Ga. 196, 44 S. E. 977; Baldwin v. State, 118 Ga. 328, 45 S. E. 399; Williams v. State, 121 Ga. 195, 48 S. E. 938; Mays v. State, 123 Ga. 507, 51 S. E. 503; Williams v. State, 126 Ga. 637, 55 S. E. 480; See, also, State v. Fuller, 142 Iowa, 598, 121 N. W. 3; People v. Selby, 26 Cal. App. 796, 148 Pac. 807; State v. Tietz, 186 Mo. App. 672, 172 S. W. 474; State v. Thornton, 232 Mo. 298, 134 S. W. 519, 32 L.R. A. (N. S.) 841.
The case of Richie v. Commonwealth, 23 Ky. Law Rep. 1237, 64 S. W. 979, was called to the attention of the court at the last argument, because the trial judge there proceeded upon the idea that the mere failure to provide for the support of a child under six years of age rendered the defendant liable to the penalty denounced by the statute. The Supreme Court held that the crime denounced by the statute was not simply the permanent and -wilful desertion of a child under six years of age, but that such desertion must be under circumstances that endanger its life or health; for instance, by leaving it alone to starve or freeze or exposing it to some contagious disease. Gedney v. Day, 44 N. J. Law, 576; State v. Coolidge, 72 Wash. 42, 129 Pac. 1088.
*521It is respectfully submitted that the rule laid down in the case of State v. Thornton, 232 Mo. 298, 134 S. W. 519, 32 L. R. A. (N. S.) 841, is the correct rule. The statute under consideration is a penal statute, prescribing a severe penalty. Such a statute must be .strictly construed and it is not within the province of the court to disregard any word or phrase or the natural and ordinary meaning of such word or phrase. A child which is being supplied with necessary food, clothing, shelter and education by its grandparents cannot be said to be in either destitute or necessitous circumstances.
It is respectfully submitted that the judgment below should be reversed.
Re-argument of the Deputy Attorney General for the State .
The application of the doctrine of ejusdem generis to the constitutional provision in question is now, as.it was before, opposed. The general words in the statute involved in the Hull Case were: “Any such place of public amusement.” Whereas the word “such” as used in our Constitution is used jointly with “as” in lieu of the pronoun ‘‘ which”.
In order to prevent the application of the rule of ejusdem generis as laid down in the case of State v. Eckhardt, 232 Mo. 49, 153 S. W. 321, plaintiff in error draws the following four conclusions: (1) the misdemeanors specified in the Constitution are all punishable by summary convictions at common law. (2) The misdemeanors specified in the Constitution are all “petty” misdemeanors. (3) The misdemeanors specified in the Constitution are all punishable by fine or imprisonment, or both. (4) The misdemeanors specified in the Constitution are all common law offenses.
Carrying concealed a deadly weapon is not an old crime, let alone a common law one, and is a very different crime from that of 2 Edward III, Chapter 3.
The term “petty” misdemeanor is not a phrase of technical significance as are the terms “felony” and “misdemeanor” even though the term “petty” may have been used by eminent persons as descriptive of a class of crimes spoken of in the same way as *522a person might today speak of the larceny of a loaf of bread in this state as a petty larceny, but in the definition of crime, it has no place.
There may be relatively insignificant assaults and batteries as there may be relatively insignificant larcenies and embezzlements and other crimes.
The crime of carrying concealed a deadly weapon was not so great in 1897, but it may now be punished by imprisonment up to seven years and is frequently punished by imprisonment of a year or upwards, and it cannot be called a “ petty crime.”
. If the contention of the plaintiff in error is sound, the increased punishment of the crime translates it to a higher “genus” of crime and it ceases to be a “petty” misdemeanor; it no longer belongs to the “genus” necessary for the purpose of evoking the general rule of ejusdem generis.
It is contended that all the specified crimes have a common feature of punishment, by a fine and imprisonment which it is maintained does not exist in the Non-Support Act. The support required of a parent is not without its feature of punishment as is the restitution money ordered in every judgment in larceny; for it may very well be regarded as a fine paid in installments for the benefit of the injured citizen.
The constitutional convention cannot be presumed to have had any such thought in mind as a limitation upon “such other misdemeanors ” when they drafted this section, carefully inserting as they did a provision whereby no matter how severe the penalty might be or whatever its nature if more than-one month’s imprisonment or one hundred dollars fine,* there should be an appeal.
The matter treated of by the plaintiff in error under head of “If appeals to the Court of General Sessions are to be founded upon the law and practice of appeals to the Superior Court from justice of the peace, the judgment of the Court of General Sessions must be either reversed or corrected,” makes very little difference in principle one way or the other as this honorable court will enter correct and final judgment in this proceeding.
The judgment as pronounced by the Court of General Ses*523sions is its judgment, it is its de novo judgment, rendered de novo. And it is submitted that it should be sustained.
The matter treated of by the plaintiff in error under the head of “The Court of General Sessions erred in its rulings of the testimony pertaining to physical violence” is new to the application for a rehearing.
This matter was not discussed by the plaintiff in error at the first argument in this court, nor was it treated of in his brief.
It is entirely too late to raise and discuss questions that were abandoned at the previous argument.
The admission of the testimony in behalf of the state as to physical violence went in without objection and it is submitted that now, on a rehearing of this case, after omission to make objection to the testimony as it originally went in; after omission to reserve a right to strike out; after omission to note exception to the admission of testimony of physical violence; after omission to argue the question when the case came regularly before the Supreme Court under the usual rule, he speaks too late.
As to the other matters treated of in the brief of the plaintiff in error, it is doubtful whether anything can be added to the former brief on these subjects and the previous oral argument or the reasons and authority already given by the court in its opinion.
It is respectfully submitted that the decision of the court is correct and should not be modified.
Brief of Counsel for the Plaintiff in Error in Reply to Brief in Behalf of State of Delaware upon Rehearing.
The contention is made that the doctrine of ejusdem generis is inapplicable because of certain apparent differences existing between the misdemeanors specified in Article 4, § 30, of the Constitution.
The learned Attorney General admits that the doctrine of necessity must have been applied in the Hull Case, 18 Idaho, 475,110 Pac. 256, 30 L. R. A. (N. S.) 465, because certain general words were used in the statute there construed.
The cases cited for the plaintiff in error show that the rule is applicable wherever and whenever specific words are followed *524by general words of description, unless no genus exists and the •cases likewise show that the courts assume that the draftsman did not intend to give the general words their full and unqualified significance, for in such case he would have made no mention of the specific things in mind.
The state contends that carrying concealed a deadly weapon is a very different crime from that of 2 Edward III, Chapter 3, which forbade the going around armed with dangerous and unusual weapons, to the terror of the people.
Carrying concealed a deadly weapon is but one form of committing the old common law offenses, and it has been held that the statute of 2 Edward III, Chapter 3, was but an affirmative of the common law offenses. Knight’s Case 3. Mod. 117, 87 Eng. Reprint, 75; 40 Cyc. 853, and cases cited.
The learned Attorney General argues that because assaults and batteries may be aggravated and because the punishment for carrying concealed a deadly weapon has now been made most severe, therefore, the framers of the Constitution must have had aggravated assaults and severe penalties in mind.
At the time of the adoption of the Constitution the express provision with regard to assaults and batteries was as follows:
‘ ‘Every justice of the peace may punish by fine, not exceeding ten dollars, all assaults and batteries, and other breaches of the peace punishable by any law of the state, when the offense is not of a high or aggravated nature. * * * "
Code (1852), § 2013; Rev. Code 1915, § 3957.
With regard to carrying concealed a deadly weapon, the provision at the time of the adoption of the Constitution was as follows;
“That if any person shall carry concealed a deadly weapon * * * such person shall, upon conviction thereof, be fined not less than twenty-five [dollars] nor more than one hundred dollars, or imprisoned in the county jail for not less than ten nor more than thirty days, or both at the discretion of the court. * * * ” Laws of Del. Vol. 16, c. 548, p. 716.
In 1909, the maximum fine was increased to two hundred dollars and the maximun imprisonment was increased to six months. Laws of Del. Vol. 25 Chapter 252, p. 555.
It was not until the last session of the General Assembly *525that the maximum fine was increased to two thousand dollars and the maximum imprisonment to seven years. Laws of Del. Vol. 28, Chapter 244, p. 686.
In other words, it is the contention of the state in this case,, that the framers of the Constitution could not have had “petty” misdemeanors in mind, because the General Assembly has-since increased the penalties for one or more of those misdemeanors to such an extent that the misdemeanors can no longer be considered “petty”.
The framers of the Constitution said to the General Assembly, You may by law give to any inferior courts jurisdiction of certain-offenses now defined and punished by the statutes of this state, which offenses were all punishable by inferior courts at common law; which offenses are now all petty misdemeanors; which offenses are all punishable by fine or imprisonment, or both; and which offenses were all common law offenses; and you may give to the said inferior courts jurisdiction of other misdemeanors ejusdem generis; provided, however, that if the said inferior courts impose imprisonment exceeding one month or a fine exceeding one hundred dollars, we will give an appeal to the Court of General Sessions.
The framers of the Constitution did not say to the General Assembly, You may give to any inferior courts jurisdiction of any or all misdemeanors, whether punishable by summary convictions at common law or no; whether petty or no; whether punishable by fine or imprisonment, or no; and we have simply specified a few of them for your convenience; you may take those specified, alter the punishments now provided for them, increase the fines and imprisonment to such a degree that instead of being misdemeanors, the offenses would have been felonies at common law; you may add penalties which consist of neither fine nor imprisonment, and in general you may do exactly what you please. We simply suggest a few things that happen to occur to us. '
Recognizing the fact that f all the misdemeanors specified in the Constitution are punishable either by fine, or imprisonment, or both, and further recognizing that the framers of the Coristitution must have had only such punishments in mind because they provided an appeal only where such punishments were inflicted, *526the state would contend that the enforcement of a civil obligation provided for by the Non-Support Act is nevertheless a fine.
In many states it is provided either by Constitution or by statute that fines shall be devoted to a certain public purpose and shall not be diverted therefrom to private uses. State v. Gilmore, 88 Kan. 835, 129 Pac. 1123, 47 L. R. A. (N. S.) 217.
The state has failed to show that the doctrine of ejusdem generis is inapplicable to the article of the Constitution under construction.
At the rehearing it was suggested by the court that the provisions of the bastardy act were more or less like those of the Non-Support Act; that jurisdiction under the former act had long been given to justices of the peace; and that if the contentions of counsel for the plaintiff in error were correct, such juristion was contrary to Article 4, §30, of the Constitution. The answers to such an inference are: (1) The bastardy act does not purport to prescribe or define any misdemeanor. Rev. Code, § 3072 et seq. (2) The bastardy act prescribes neither fine nor imprisonment for the punishment of any criminal offense qua offense. (3) Proceedings to provide for the support of bastard children are by the weight of authority declared to be in the nature of civil proceedings. 1 Enc. of Pl. & Pr. 267, and cases cited; 5 Cyc. 644, and cases cited. In this state bastardy proceedings are regarded as only quasi criminal. Smith v. State, 1 Houst. Cr. Cas. 107.
It is respectfully submitted, therefore, that jurisdiction in bastardy cases does not depend upon and has no connection with Article 4, § 30, of the Constitution, which provides for certain “criminal matters,” plainly “misdemeanors” and punishable by “fine or imprisonment, or both.”
The state has not answered the contention of counsel for the plaintiff in error that, if appeals to the Court of General Sessions are to be founded upon the law and practice of appeals to the' Superior Court from justices of the peace, the judgment of the Court of General Sessions must be either reversed or corrected.
The learned Attorney General has been unable to find any *527answer to the contention of the plaintiff in error that the information in the Municipal Court was fatally defective for want of the name of the injured party. \
When the original brief of counsel for the plaintiff in error was prepared, it seemed to him contrary to all authority that the alleged physical violence would be considered by the Supreme Court on certiorari, and counsel for the plaintiff in error could not foresee that the learned Attorney General would step out of the record to argue the case upon its supposed merits.
It is respectfully submitted, therefore, that the present contention of counsel for the plaintiff in error does not come too late, and that the Supreme Court must either disregard the merits of the case in arriving at its conclusion or it must reverse the judgment of the Court of General Sessions, because the merits do not and can not appear upon the record under the rulings of the court below.
Counsel for the plaintiff in error confronts the state with a clear dilemma, and counsel neither concedes nor denies, expressly or impliedly, that either horn of the dilemma is correct. He simply submits that both cannot be right, and that the learned court below could not hold evidence of physical violence admissible and material and then hold it not subject to contradiction or cross examination.
The learned Attorney General, after having asked the court to overrule all technical objections in this case, now insists upon certain technical rules with regard to exceptions to the evidence. It is true that an objection must be positive, not hypothetical or contingent, and it cannot be reserved or postponed unless it is not practicable for the opponent to know whether there is ground for objection. The test is whether he, at the time of the offer, knows or could know the grounds. If he does, his decision must be absolute, not contingent. 1 Wigmore on Evidence, §185.
In the present case counsel for the plaintiff in error could not know that testimony was objectionable when the court itself said, “We cannot tell whether it is relevant until we hear it;” but when the court had heard it and had deemed it relevant and then refused to permit cross examination upon it, it was clearly *528the right moment for an objection to the ruling of the court and an exception thereon, In fact an objecting opponent is not always entitled to an immediate and final ruling, but when a ruling has been made¡ his exception goes to the whole matter.
The learned Attorney General makes no answer to the contention of counsel for the plaintiff in error that the two cases; which may be regarded as authority for the so-called “humane-construction” are counterbalanced botfy in logic and in weight by many other authorities and that the reasoning in those "cases was drawn from cases where the statute contained no qualifying phrase whatsoever. .
Curtis, Ch. (Pennewill, C. J., concurring, except upon-one point appearing in his opinion hereafter):—
In this case a reargument was had on the application of the plaintiff in error, and the views of the majority of the court as to the final result have not been changed thereby, notwithstanding theforcible and earnest argument of the counsel for the plaintiff in error..
It is easier to state the rule -of ejusdem generis than to apply it, for its application is based on the finding clearly a genus. As already stated, this court does not find in the several misdemeanors stated in the Constitution a genus. It has been strenuously argued that there is a genus, consisting of four characteristics common to all of the misdemeanors mentioned in the- constitutional provision, and that the misdemeanor under consideration lacks these common characteristics. These characteristics-were thus stated by counsel for the plaintiff in error: The misdemeanors specified in the Constitution ■ are all (1) punishable by summary convictions at common law; (2) petty misdemeanors; (3) punishable by fine or imprisonment, or both; and (4) common law offenses.
As pointed out clearly by the Deputy Attorney General,, in his supplemental brief, the first and fourth characteristics are not found in all of the crimes mentioned in the Constitution,, for the crime of carrying concealed a deadly weapon is not a common law offense, and has not been a crime in.this state-until made so in 1881. But even if the constitutional misdemeanors had. *529all of these characteristics and the misdemeanor named in the Non-Support Act does not contain all of them, it is not to be assumed that the framers of the Constitution meant to restrict the General Assembly from giving to any inferior court, or justices of the peace, jurisdiction of a misdemeanor which did not possess all of the characteristics. The jurisdiction certainly was not restricted to common law offenses.
The most reasonable view on this point is, that the jurisdiction of such inferior courts was limited to those criminal and quasi criminal matters punishable and enforceable after summary conviction as had been, or could reasonably be, conferred in this state on inferior courts, or on justices of the peace. At the time of the adoption of this Constitution there was vested in the justices of the peace jurisdiction of a criminal or quasi criminal matter substantially like that named in the Non-Support Act. Therefore it is not a violation of the restrictions of the Constitution to confer upon an inferior court jurisdiction of the matters contained in the Non-Support Act. Since the act passed in 1829, jurisdiction of bastardy proceedings has been vested in justices of the peace, and the purpose and machinery of that act is substantially similar to those of the Non-Support Act. Both enforce duties of parents for the support of their children, permit summary convictions, and are enforced by requiring the giving of bonds for support, and commitments to jail in default of a bond, with an appeal to obtain a trial by jury. It is a fair assumption that the framers of the Constitution of 1897 had in mind this bastardy proceeding as an illustration of the kind of summary proceeding which experience of many years had shown could be safely committed to inferior courts, and even to justices of the peace, and the Non-Support Act being in its purpose and methods so similar to the ancient proceeding to compel the father of an illegitimate child to support his offspring may safely be considered to be well within the intent of the makers of the present Constitution. It was not necessary, of course, to include in the Constitution either of 1831 or 1897 mention of the bastardy proceeding as one of the criminal matters which could be conferred on inferior courts, because that jurisdiction had already been conferred on *530justices of the peace. For the additional reasons here set forth, the conclusion as to the constitutional validity of the Non-support Act is supported.
(16) There was no error in the admission or rejection of testimony relating to the marital relations between the plaintiff in error and his wife, for any such testimony whether admitted or rejected was immaterial and irrelevant. For the purposes of this case it does not matter whether the father of the child used personal violence towards his wife or not, or whether she was afraid to live with him or not, or whether he really wanted her to live with him. It was his duty to support bis child if he was financially able to do .so, provided the child was in destitute and necessitous circumstances, even though the wife without, sufficient excuse refused to live with him. We do not say that he could have been compelled to support his wife in such a case, but surely a little child could not be held responsible for the acts of the mother. Under the non-support law preceding the present statute, the court uniformly held that “until legally separated, a man is bound to support his wife. If she be a woman unfit to live with, the husband’s remedy is to obtain a divorce.” State v. Tierney, 1 Pennewill 116, 39 Atl. 774.
The former statute was not as criminal in its character as the present one, but it was more criminal than civil, and contained the words “without reasonable cause,” which are practically the same as “without lawful excuse.” It was the law of this state, therefore, that the misconduct of the wife could never be a lawful excuse for the husband’s failure to support her. It is .not necessary to go so far in the present case, and it is possible the court might not do so, in view of the character of the statute and the greater necessity for construing it strictly. But it can and should be held that the separation of the father and mother, no matter through which one’s fault, is not a lawful excuse for the father’s refusal to support a young child in destitute and necessitous circumstances within the meaning of the statute. Such, as we understand the record, was the. position taken by the Court of General Sessions in the determination of this case, and in our opinion it was the correct one.
*531It has been urged that such a construction of the statute eliminates, or disregards entirely the words “without lawful excuse.” It is contended that those words mean something, and if a wife’s refusal, without just cause, to live with her husband does not excuse him from supporting her, and a child in her custody, then the words are meaningless. The same reasoning was often unsuccessfully urged upon the court in cases arising under the former non-support law. But without regard to the decisions in those cases, we do not concede, and it has never been conceded that the words “without lawful excuse” are meaningless. Indeed it is not difficult to conceive of a case in which they might apply and be given full meaning and effect. The financial inability of the father to support his child would be a lawful excuse for non-support. The independent means of the child, in connection with the limited means of the father, might likewise be a lawful excuse. And perhaps the independent and adequate means of the wife who without just cause separates herself and her young child from her husband, would be a lawful excuse for his refusal to support the child. The desire of the grandparent to have the custody of the child, with an assumption of the legal liability to support it, might also furnish sufficient excuse for the father to refuse to support the child who is supplied with the necessaries of life. Other cases or instances no doubt could be mentioned in which the words employed in the statute might very well apply and be given the meaning and effect intended "by the legislature. '
But we entirely agree with the court below in holding that the mere refusal of a wife to live with her husband, even though she had no just cause to leave him, does not. furnish him a lawful excuse to support a child she takes with her. If her conduct after leaving is so flagrant and wicked as to make her an unfit person to keep and raise the child, the father may in a proper proceeding recover its custody if he be a proper person to have it. Such however, is not the present case.
It should be borne in mind that the question in this case is not whether the wife had a lawful excuse for leaving her husband, but whether the latter had a lawful excuse for refusing *532to support the child. The two questions are wholly dissimilar, and the former is in our opinion entirely immaterial in this case. We think some confusion has been caused in the discussion of the case by treating both questions as material and in effect similar.
But it is also true that if the mother of an infant of tender years refuses to live with her husband, the father of the child, because she has suffered personal violence at the hands of her husband and fears on that account to go to live with him, her refusal under such circumstances is not a lawful excuse for the failure of the father to support the child. It was not error, therefore, for the court below to refuse to strike out all testimony as to the martial relations of the parents, as that testimony had a bearing on the question of personal violence. Whether the court relied on the general principle above alluded to, or on the evidence respecting the wife’s fear of personal violence, does not appear, for no opinion or statement was filed in the court below, and it is not important to find the exact basis of their; conclusion if there be some evidence respecting both points of view.
With respect to the rulings of the court below as to the admission of evidence, it is not correct, as stated by the counsel for the plaintiff in error, that the court excluded any testimony offered by the plaintiff in error which would show there was no personal violence, or to show that the husband and wife were on friendly terms. Therefore, there is no assignment of error based on the admission or rejection of testimony which warrants a reversal of the finding of the court below.
(17) The seventeenth assignment of error was the refusal of the court to permit the wife of the plaintiff in error to answer this question, put to her at the trial: “Are you willing to take your " child to your husband and live with him in a home provided by him?” Whether the question be answered in the affirmative or negative does not tend to prove or disprove the charge made on the information in the Municipal Court that the plaintiff in error had failed to support his minor child. The only bearing it would have would be on the future support of the child, which was not the issue. Any order for the support of the child was by the act made subject to change by the court, and was based on the circum*533stances, the financial ability or earning capacity of the plaintiff in error. A reconciliation of the parents and their cohabitation might be a reason to change the order, but would not necessarily absolve him of guilt for his completed offense stated in the act. There was, therefore, no error in the refusal of the court to admit the evidence referred to in the seventeenth assignment of error.
(18, 19) The procedure in the Court of General Sessions on appeal from the Municipal Court in entering there a new judgment based on the evidence produced at the hearing of the appeal, was entirely correct. On the appeal the case was heard de nemo, not on the testimony taken in the Municipal Court, for there was not, and could not be, a record of it for transmission to the appellate tribunal, but on the testimony produced before the appellate court. Therefore, the judgment on the appeal was a new one, viz., the judgment of the Court of General Sessions, and that court was not limited to an affirmance or reversal of the judgment of the Municipal Court. It had a right to enter a different judgment from that of the lower court, including changes in the sentence and the provision for enforcing support for the child, and could rightly require the father to provide such support from a period anterior to the entry of its judgment, viz., from the time of the judgment in the Municipal Court. On this writ of certiorari this court finds whether the record does or does not contain error; and if it does contain error, grants a new trial, or orders a correction of the judgment; and if it does not find error, simply affirms the judgment and by a mandate remits the case to the Court of General Sessions for such further proceeding therein as would have been proper if there has been no writ of error in this court. There is no error in the record based on the manner of the entry of the judgment in the Court of General Sessions.
After consideration of the cases cited on the subject, we adhere to our interpretation of the phrase “in destitute or necessitous circumstances,” contained in the act. As stated by counsel for the plaintiff in error, there are two lines of cases as to the liabilities of a parent towards the maintenance of his offspring; the one holding that a child may be in destitute and necessitous *534circumstances though its wants be amply supplied by relatives or friends; the other holding that actual destitution or necessitous circumstances must exist. The statutes construed in the cases vary much, and we still find, as stated in the opinion first filed in the cause, and for the reasons there stated, that the Anew there expressed is the correct els well as the salutary one. Our conclusions are necessarily based on the Delaware statute, and upon our conviction as to the purpose and scope thereof, and the meaning of the language used is based on such purpose and scope.
(20) The case has been considered in this court as though the evidence produced in' the court below was properly made a part of the record and, therefore, reviewable. But on a certiorari questions of law and not of fact are reviewable. Bailey v. Luff, 2 Harr. 292. Evidence is gotten into the record of the court below by a bill of exceptions, which is not appropriate to a writ of certiorari, but to a writ of error. Inasmuch, however, as the record, including the testimonjr taken by the court below, as well as the parties, are before this court, this court has power to, and should, determine the questions raised by the assignments as if there had been a writ of error instead of a writ of certiorari. This course was pursued by the Court of Errors and Appeals in Jeans v. Jeans, 3 Harr. 136, where there was a writ of error when there should have been a writ of certiorari.
In my opinion, therefore, the judgment of the court below should be affirmed without any modification.
Pennewill, C. J.:On one point I do not entirely agree with the Chancellor’s opinion. It is agreed that the case wels triable de novo in the Court of General Sessions. For that reason I think the support of the child ordered by said court should have commenced at the time the order was made and not at a time anterior thereto. The judgment was a new judgment and in my opinion should not in effect have related back. In all the trials had under the former Non-Support Act, the support began at the time of the judgment, and in no case did the court ever make its order retroactive. I think, therefore, the court below should reform its judgment to the extent that the support ordered shall begin at the time of the rendition of the judgment.
*535Except as herein indicated, I agree with the opinion of the Chancellor.