Donaghy v. State

Boyce, J.,

dissenting:—In order to determine whether the Municipal Court for the City of Wilmington had jurisdiction of the offense charged against the plaintiff in error, it is necessary to make a close examination of the several provisions of the Constitution, vesting judicial power in the state, with a view to ascertaining the true intention of the framers in the establishment of our judicial system. It is to be presumed that these several provisions are of the same general policy, and they should be construed in the light of each other. One of the objects in the judicial system provided for is expressed in the provision for the establishment of inferior courts of special, limited, criminal jurisdiction,—jurisdiction of the criminal matters, specifically enumerated, and of others of like or inferior grade. While the General Assembly is given power to transfer the present jurisdiction of the Court of General Sessions in any matter to other courts, as provided by the Constitution, it cannot • transfer jurisdiction of criminal matters of a higher grade than the offenses specifically enumerated in Section 30, Article 4, of the Constitution, to any inferior court established or to be established under said section.

The doctrine of ejusdem generis is a rule of construction. By this rule, it is recognized that where general words follow an enumeration of persons or things of a particular and specific meaning, such general words are not to be construed in their widest extent, but are usually to be restricted to persons or things of the same class or kind with those enumerated. The rule does not require the rejection of the general words, but it does require the ascertainment of legislative intention to be gathered, as in this case, from said section 30, and the other provisions of the Constitution dealing with judicial powers; and the office of the rule is to aid in ascertaining such intention.

Generally speaking, the rule only applies where the specific words are all of the same nature, and is inapplicable where they are of different genera. There are many instances, however, where the general words are unaffected by connection with the *536specific words, and this is so in cases where the general words are to be understood in their primary and wide meaning, and as including anything which could in any manner facilitate the plain and evident legislative purpose. But this qualification of the rule is not extended so as to class, as in this case, misdemeanors of superior grade with those of inferior grade, if there are, in fact, misdemeanors of a lower grade than those enumerated to which the general words can apply. So that the general words, “and such other misdemeanors,” relied on by the state, are not to be extended to misdemeanors commonly recognized, and well understood by the framers of the Constitution, to be superior to those enumerated, but only to misdemeanors of the same general kind or inferior in grade. And this is so where the enumeration is, like as in this case, of several distinct, specific offenses, differing in specie but of the same general inferior grade. Black on Inter. of Laws 141; 2 Lewis’ Suth on Stat. Con. § 437 (2d Ed.)

In this state the more important common law crimes, as well as the statutory crimes, are defined by statutes; likewise some of the smaller common law offenses, but not all 'of them; as for instance, “assaults, batteries, nuisances, and all other offenses indictable at common law, and not specially provided for by statute” (Rev. Code 1915, § 4720), all of the latter, though not all specifically mentioned, being misdemeanors embraced within the lesser common law offenses, “punishable by fine and imprisonment, or either, according to the discretion of the court.” The offenses specifically named in the Constitution are commonly recognized as a lower grade of misdemeanors, and are such as may be, and frequently are, dealt with by summary proceedings before justices of the peace and inferior courts. In this connection, attention may very well be directed to the fact that Section 30, Article 4, of the present Constitution does not contain all of the offenses enumerated in the corresponding section of the Constitutionof 1831; as for instance, “horse racing,” “cock fighting,” “shooting matches,” and others, and very likely for the reason in part, at least, that they were deemed too minor to be mentioned in the fundamental law. It may also be noted that the general words in the present Constitution were not contained in the old *537Constitution, and doubtless they were incorporated in the new to overcome the decision in the case of Gray v. State, 2 Harr. 77. The Legislature had previously undertaken to give to the Mayor’s Court in the City of Wilmington (corresponding to the present Municipal Court of the City) jurisdiction of “all larcenies, assaults and batteries, riots, routs, and unlawful assemblies, nuisances, and other offenses, committed within the city, and other grant of powers not necessary to mention. Judge Harrington, in his opinion, filed in the Gray Case, supra, found that the offenses, italicised above, were not included within the class of offenses specified in the then Constitution, authorizing the establishment of inferior courts, and that therefore the grants of power were unconstitutional and void, said:

* * * If the term ‘other offenses’ mentioned in the act is not to be restrained to offenses inferior in grade” [note the words ‘inferior in grade’] “to those already enumerated, there is no limit to the jurisdiction of the Mayor's court over offenses committed within the city.” * * * “It” [the grant intended by ‘other offenses’] “is not embraced within the letter of the Constitution; it is not contemplated by its spirit or intent; it is not necessary or useful in reference to the objects for which the door was left open for the establishment of other and inferior courts; it is plainly inconsistent with the idea of an inferior court to place in the hands of a tribunal claiming to be merely a corporate franchise, exercising its function through corporate agents, not selected by nor responsible to the public at large; powers and jurisdiction equal to * * * courts deriving authority immediately from the Constitution itself.”

It was held by a divided court in State v. Churchman, 3 Pennewill, 361, 51 Atl. 49, that the City Judge of said Municipal Court is an officer of the Municipal Corporation.

The conclusion reached by Judge Harrington applies with equal force to the present case. If “other offenses” would have the effect to carry “powers and jurisdiction equal to courts deriving authority immediately from the Constitution itself,” what is there to prevent the phrase “and such other misdemeanors,” construed in its widest extent, from having the same effect? It is inconceivable that the framers of the Constitution intended that the general words should have such effect, it being so plainly inconsistent with the idea of an inferior court, such as is authorized by Section 30, Article 4, of the Constitution.

There is a genus common to all the enumerated offenses in, at *538least, two characteristics. Tested by their character, they are misdemeanors of inferior gradeas already shown; and they are each punishable by fine and imprisonment, or either, according to the discretion of the court; and none of them embraces the element for the enforcement of a pecuniary liability. There is, indeed, a want of similarity between the offenses provided for by the statute in question, and those enumerated in the Constitution. The latter are ejusdem generis in punishment, but not so with those created by the statute;, for the double' purpose of the statute takes the offenses created thereby out of the genus of the misdemeanors specified. Again, among the offenses enumerated in the provision of the Constitution of 1831, corresponding with said Section 30 of the present Constitution, were “retailing or selling without license, wine, rum, brandy,” etc., “contrary to law,” as in the present Constitution, in which after the words, “without license,” is incorporated “or on Sunday, onto minors.” And after the words, “contrary to law,” as above, there is also incorporated “carrying concealed a deadly weapon.” At the time of' the adoption or the present Constitution, selling liquor on Sunday; or to minors and carrying concealed a deadly weapon, were misdemeanors. If by the general words, “and such other misdemeanors,” plenary power was intended to be reposed in the General Assembly to give to any inferior courts by it established or to be established, or to one or more justices of the peace, jurisdiction not only of the criminal matters enumerated, but of any other misdemeanors, whether ejusdem generis of not, why did the framers of the present Constitution incorporate with the offenses enumerated in the old Constitution, and retained in the new, the offenses of selling liquor on Sunday, or to minors, and of carrying concealed a deadly weapon? It does seem pertinent to inquire, why did the framers of the Constitution go to the pains of making the enumeration of specific offenses, and particularly of 'making the revision of the corresponding provision contained in the old Constitution? Indeed, why was the revision made, and why was there any enumeration of specific offenses, if the general words, have the meaning accorded to them by the majority opinions?

*539I am of the opinion that the court is not driven to say that the specific misdemeanors enumerated exhaust the genus, and that there is nothing ejusdem generis left for the general words to operate upon; and I am also of the opinion that the framers of the Constitution did not intend to leave the jurisdiction of misdemeanors, regardless of their character, so much to the discretion of the General Assembly as that inferior courts can be vested with jurisdiction of the misdemeanors created by the statute in question, the latter clearly not being within the genus of the misdemeanors specifically mentioned, and not within the meaning of the general words following. Where the specific misdemeanors do not exhaust the whole genus óf inferior misdemeanors, it is against the weight of authority in the application of the rule to apply it to a superior class. Inferior courts established under Section 30, Artticle 4, of the Constitution, are so affected by the specific offenses enumerated and the general words following therein, construed in the light of other provisions of the Constitution vesting judicial power, that the jurisdiction of such inferior courts must be limited to the offenses specifically mentioned and to misdemeanors of the same general class or inferior grade,

A bastardy proceeding is generally considered to be in the nature of a police regulation, and justices of the peace are vested with jurisdiction thereof under the police power of the state, and not by virtue of constitutional authority, as are the powers and jurisdiction of the Municipal Court. By great weight of authority, such proceedings are adjudged to be civil and not criminal in their nature. In some jurisdictions they are regarded as criminal; in others as quasi civil or quasi criminal. In this state, the proceeding is considered to be of the latter náture. Smith v. State, 1 Houst. Cr. Cas. 108; Vail v. State, 1 Pennewill, 8, 39 Atl. 451; and yet the proceeding is deemed to partake so much of a civil nature, that the Superior Court allowed certiorari to a justice of the peace on an order of filiation. Claud v. State, 2 Harr. 361. The Non-Support Act expressly defines a crime. The bastardy act defines no crime and provides no punishment for any offense, but only for failure to comply with the order of filiation. Clearly inferior courts cannot be given jurisdiction of *540criminal matters, that is of misdemeanors, the grade of which is not determined by the specific offenses enumerated. Such courts cannot be clothed with jurisdiction of civil matters Or of criminal statutes primarily aimed at the enforcement of civil liabilities. So that the emphasis laid upon the similarity of the Non-Support Act to that of the bastardy act is of little or no help in determining the question before this court. The assumption that the framers of the present Constitution had in mind bastardy proceedings as an illustration of the kind of summary proceedings which experience of many years had shown could be safely committed to inferior courts, does not seem well founded.

The office of the common law writ of certiorari, is to bring before the court for inspection the record of the inferior tribunal, for the purpose of reviewing questions of law and not of fact. The supervisory powers of the court on certiorari should not be confounded with its appellate jurisdiction. The writ has never been used to inquire into the merits of the case on the facts. In Bailey v. Luff, 2 Harr. 292, it was said:

' ‘But on a certiorari the court may reverse for want of jurisdiction, for not proceeding in the manner the law directs, and perhaps for admitting and deciding on illegal evidence alone, if this appears."

The exceptions in this case are specifically addressed to errors of law,—jurisdiction, procedure, pleadings, and the judgment, including exceptions made to the admission and rejection of certain testimony. Though the record sent up includes the evidence adduced in the trial below, yet it is not a matter properly for review, and should not be reviewed, by this court on certiorari. But since the majority of the court have gone beyond the exceptions to the record and have considered the evidence on its merits, as they find it, I may be warranted in making the following comments.

I cannot agree that there was evidence to Warrant the court below in finding (and certainly there is nothing in the record to show that they did find) that fear of personal violence deterred the wife of the plaintiff in error from accepting his offer to make a home for her after the separation. There is enough in the record *541to warrant the conclusion, however, that other causes keep the plaintiff in error and his wife apart. Be that as it may, the subsequent friendly conversations and friendly letters between the husband and wife, and their going to Philadelphia, and being there together, at least once after separation, clearly negative any idea of real fear on the part of the wife of her husband.

Without intending any reflectoin on the wife, it is pertinent to say, in this connection, that there is nothing in the record, or in any rule of law, which does not entitle the testimony of the husband to the same degree of weight and credibility as that to be given to the testimony of the wife. The husband denied the act of violence testified to by his wife, and her testimony like his, is uncorroborated, though the wife testified that her mother was present when the alleged act of violence was committed.

Counsel for the plaintiff in error objected to the question asked the wife in her direct examination, viz.: “Did you have any trouble with your husband there?” The Court suggested: “We can’t tell whether it is relevant until we hear it.” The question and others following, similar in character, led the witness to detail some domestic difficulties; the occasion of her separation from her husband; her return to the home of her parents with her child, where she continues to live; and the support of the child by its grandfather. The remark of the court respecting the question above, reasonably applied to the questions following, and it carried with it the reservation of the right of the plaintiff in eiTor to renew his motion to strike out the testimony after its admission, and particularly so on learning that he would not be permitted to cross examine the wife on the matters testified to by her, except for the purpose" of attacking her credibility. The motion to strike out was properly made, and should have been allowed.

If it was competent for the wife in her direct examination to give testimony relating to the marital relations between her and her husband, including othei; matters testified to by her, it was equally competent to examine her concerning the same on cross examination. It is manifest from the record that if the examination in chief was relevant, then the rejected questions-*542on cross examination were also relevant. The exception of the plaintiff in error in this connection is to the effect that because of the several rulings made by the court below, during the cross examination of the wife as well as during the progress of the trial, to which exceptions were taken, full opportunity was not afforded the plaintiff in error to show that he was not “without lawful excuse’’.for not supporting his child; and that the child was not “in destitute or necessitous circumstances” within the meaning of the statute; and the plaintiff in error is sustained in his position in that the phrases “without lawful excuse” and “in destitute or necessitous circumstances” are words in the statute of legislative intent and meaning. I cannot, therefore, accept the interpretation of the phrase “in destitute or necessitous circumstances,” contained, in the majority opinion, as correct or salutary; and it has not the support of the better considered cases.

It is manifest from the record that the court below, (1) did not consider the separation between the husband and wife, whatever the cause, to be a lawful excuse for the neglect or refusal of the father to support his child; and (2) found that as the father was not supporting the child, it was in destitute or necessitous circumstances within the meaning of the act, though.it had been and is properly supported by its grandparents. Whether the wife was, or was not, justified in leaving her. husband and in returning to her parents, taking the child with her, did.not impress the court as important, for-the reason that the child could not help the difficulties between its parents; nor likewise, did the fact that the child was supplied with necessary food, clothing and shelter by its grandparents, weigh with the court.

The court regarding the father legally liable for the support and maintenance of his child, regardless of. the fact of the separation existing between its parents, or the cause thereof, considered that the father was criminally liable under the statute. True it is, the child has no separate property or income, neither has the mother; so far as appears from the record. The grandfather’s ability to. support the child is not denied. Nor is there any suggestion in the record of his inability or unwillingness to do so. It is clearly shown that the child is not in need of any necessary *543food, clothing or lodging, and it does not appear that it will be so long as it shall remain with its grandparents. As between the grandfather and the father of the child, there may be a legal liability on the part of the father to the grandfather for reasonable necessaries supplied the child. But is the father criminally liable? The statute creating the offense charged against the father contains certain clear, specific elements of the offense. Shall these descriptive words of the offense, necessary to be alleged, and proved, be disregarded on the proofs to the extent that it is not necessary to show every essential ingredient of the offense? If the Legislature meant that the words “without lawful excuse” and “in destitute or necessitous circumstances” were not intended to be matters of description of the offense, it is fair to assume that they would have omitted them, and simply made “neglect or refusal of the father or mother to support his or her child or children” a criminal offense. The offense charged is not expressed in such barren terms, but it includes words of description which cannot and should not in a criminal prosecution be ignored. There should be no conviction in a prosecution under the statute, if it should be shown that a wife unreasonably and without legal justification refuses to live with her husband, and goes home to her parents taking her child with her, with their consent and approbation; and if, in addition thereto, it should be shown that the grandparents are not only able, but are willing and desirous, of keeping and supporting the child. Under such circumstances the father would not be without lawful excuse and the child would not be in destitute or necessitous circumstances within the meaning of the act. In ruling as the court below did, on the cross examination of the wife, there was disclosed an interpretation of the statute which had the effect to deny the plaintiff in error of any defense within the purpose and meaning of the words, “without lawful excuse,” or “in destitute or necessitous circumstances.” And within the legislative purpose of these phrases, the,record clearly shows that the state did not sustain by proofs the necessary and essential elements contained in the information filed, and a conviction of the plaintiff in error was not warranted.

The order for support, after the verdict of guilty, can have *544effect only from the date of the verdict, and the court cannot enter an order for support from' a period anterior to the entry of the verdict. Since the majority of the court affirms the judgment of conviction, I concur with the Chief Justice in his opinion to the effect that the order made in this case should have commenced from the date thereof, and that the court below should reform its order accordingly. '

The case of State v. Tierney, 1 Pennewill, 116, 39 Atl. 774, has generally, but not uniformly, been followed and particularly so in cases where the husband is willing and desirous of having his wife return to and live with him; but she, apparently without just cause, refuses to do so.

I am able to concur with the majority opinion in that, in non-support cases, “it has never been conceded that the words ‘without lawful excuse’ are meaningless”; and the illustrations of cases in which they might be given effect are apt, but they are not exclusive of the facts of this case.

I am for the reversal of the conviction for the reasons assigned.

The judgment entered in this court was that there was no error in the record of the court below, other than in the order requiring the plaintiff in error to pay for the support and maintenance of his child from a time anterior to the entry of the order, and the cause was remanded to the court below to reform the order in accordance with the judgment of this court.