Numerous exceptions to the record were taken by the plaintiff in error, but as stated by his counsel in his brief they involve in general only three questions, which were there succinctly stated thus:
“1. Has the Municipal Court for the City of Wilmington jurisdiction macases arising under Chapter 262, Vol, 27, Laws of Delaware?
‘ ‘2. Upon an appeal to the Court of General Sessions from inferior courts under Article 4, § 30, of the Constitution of the State of Delaware,, may the Attorney General file a new information; and if so, in what respects may the new information differ from the information filed in the inferior court?
‘ ‘3. What constitute ‘without lawful excuse' and ‘in destitute or necessitous circumstances’ under Section 1, Ch. 262, Vol. 27, Laws of Delaware?"
This last point raises the question as to the sufficiency of the proof made in the trial of the information in the Court of General Sessions. The question of jurisdiction depends upon whether under the Constitution the Municipal Court could be given power to hear causes wherein a husband is charged with desertion and non-support of his wife and children. Article 4, § 30, of the Constitution of the State of Delaware provides:
“The General Assembly may by law give to any inferior courts by it established or to be established, or to one or more justices of the peace, jurisdiction of the criminal matters following, that is to say: assaults and batteries, keeping without license a public house of entertainment, tavern, inn, ale house, ordinary or victualing house, retailing or selling without license, or on Sunday, or to minors, wine, rum, brandy, gin, whiskey, or spirituous or mixed liquors, contrary to law, carrying concealed a deadly weapon, disturbing meetings held for the purpose of religious worship, nuisances, and such other misdemeanors as the General Assembly may from time to time, with the concurrence of two-thirds of all the members elected to each House prescribe.
‘ ‘The General Assembly may by law regulate this jurisdiction, and provide that the proceedings shall be with or without indictment by grand jury, or trial by petit jury, and may grant or deny the privilege of appeal to the Court of General Sessions; provided, however, that there shall be an appeal to the Court of General Sessions in all cases in which the sentence shall be imprisonment exceeding one month, or a fine exceeding one hundred dollars.”
[1] The doctrine of ejusdem generis, invoked by the defendant, is a rule of statutory construction to the effect that where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to
[2] But there is an important modification of the rule as to ejusdem generis very pertinent in this case. Obviously the doctrine does not apply where the specific words signify subjects greatly different from one another. See State v. Eckhardt, 232 Mo. 49, 133 S. W. 321, quoting a fair definition of the doctrine contained in 36 Cyc. 1119, 1120, also cited in the defendant’s brief. See, also, McReynolds v. People, 230 Ill. 623, 82 N. E. 945; Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann. Cas. 1914C, 302; Brown v. Corbin, 40 Minn. 508, 42 N. W. 481. Is there such a similarity or relationship between the several criminal matters mentioned in the constitutional provision under consideration? Clearly they are all crimes of the grade of misdemeanors, as distinguished from felonies. In other respects they are public wrongs, having no characteristics common to all of them. Some are breaches of the peace, viz., assaults and batteries, and perhaps disturbing religious meetings, while none of the others are. Others relate to the enforcement of laws for collection of revenue, with only a remote bearing on peace and good order, viz., keeping without license a tavern, and selling intoxicating liquors without license, or on Sunday, or to minors. Incidently this class of criminal matters relate to the promotion and enforcement of morality. Disturbances of religious meetings probably involve a breach of the peace, but a broader pur
It is not claimed that the Non-Support Act violates in any other way the constitutional provision above quoted, for it was enacted by a vote of two-thirds of the legislature, the offense created is not a felony, and an appeal was provided. As has been pointed out, the constitutional phrase ‘ ‘such other misdemeanors as the General Assembly may * * * prescribe’ ’ means naturally
and according to the usual meaning, as well as from the context “other misdemeanors such as the General Assembly may * * * prescribe,” and if it had been intended to qualify the word ‘ ‘misdemeanors’ ’ to mean demeanors like those mentioned, the phrase used would naturally and properly have been “and other such misdemeanors.”
[3] It is argued that the Constitutional Convention could not have intended to confer upon the Municipal Court for the City of Wilmington jurisdiction of offenses like the one before the court, because the accused would have no right of appeal in cases where neither imprisonment for a month nor a fine of one hundred dollars is imposed. We are of the opinion that in every case where the payments imposed upon the accused would, during the continuance of his bond, amount to at least one hundred dollars he would be entitled to an appeal. That would cover practically every case, and be in harmony with the spirit of the law.
[4, 5] In holding that there was not in the section of the
[6, 7] The next question relates to the procedure on appeal and the filing of a new information in the appellate court. An appeal to the Court of General Sessions from the Municipal Court having been taken by the defendant, the Attorney General filed in the appellate court a new information differing in some respects from that in the lower court, and it is claimed that this was error, and that the case must be proceeded with upon the record of the court below. The constitutional provision above quoted respecting the jurisdiction of inferior courts simply provides that there shall be an appeal to the Court of General Sessions, and there is
‘ ‘The filing of a transcript, modes of trial and forms of proceeding shall be as in cases of appeal from the judgments of justices of the peace. ’ ’
In Section 21 of the same act, it is enacted that, if in a prose
[8, 9] Do either of these sections, both of which were in force when the Non-Support Act was passed, provide a procedure for hearing appeals in cases arising under the Non-Support Act? Clearly the latter does not, for it is in no sense an appeal, but is a, change of venue, or transfer of the cause, in advance of a trial thereof. It is equally clear to us that the former section (Section-23) does furnish a theory of procedure, though the appellate tribunal therein mentioned be a civil and not a criminal court, and though a transcript refers naturally to the record of a civil and not of a criminal suit, and though the judgment of a justice of the peace in a civil cause is not analogous to a judgment in the Municipal Court upon conviction of a violation of the Non-Support Act. On appeal from the judgment of the Municipal Court under that act the case is heard de novo in the Court of General Sessions as appeals to the Superior Court from a justice of the peace are heard, including a new information in the appellate tribunal correspond-, ing to the narr. in.the Superior Court. The case of Pratesi v. The Mayor and Counsel of Wilmington, 4 Pennewill, 258, 54 Atl. 694, confirms this view, and is pertinent here, for the offense of which the defendant in that case was convicted below, viz., maintaining a nuisance by obstructing a public street, though it was a violation of the ordinance of the City of Wilmington, was none the less criminal in its nature. The Attorney General had a right therefore to file in the Court of General Sessions a new information against the defendant, Donaghy, and the established practice to such effect is approved.
[10] The next question relates to the variations of the new information from that filed in the court of original jurisdiction. The information filed in the Court of General Sessions differed
By the Constitution one accused of a crime is secured in his right ‘ ‘to be plainly and fully informed of the nature and cause of the accusation against him.” Article 1, § 7. Accordingly, it has been held that in an indictment for selling liquor by the small measure ‘ ‘to one-,” the name of the person to whom it was sold must be specified if known, in order to give the accused certain knowledge of the specific offense with which he was charged, though it would have been held differently if he had been charged with a course of conduct or habit, arising from a continuance of acts of the same nature. State v. Walker, 3 Harr. 547. Obviously a charge of an assault must contain the name of the person assaulted for the identification of the person injured, as well as being a material description of the offense. There is no doubt as to the general principle. The wise and wholesome language in Bishop on Criminal Procedure, §517 et seq., quoted by counsel for the defendant in his brief, must ever be had in mind. Without making a full quotation, the author says:
Page 498“ * * * Every fact which is an element in a prima facie case of guilt must be stated; otherwise there will be at least one thing which the accused person is entitled to know, whereof he is not informed. And that he may be certain what each thing is, each must be charged expressly and nothing left to intendment. All that is to be proved must be alleged.”
[11] But it does not follow that the information in the Municipal Court was defective in that in charging the defendant with neglect to support “his minor child under sixteen years of age,” it did not state the name of the child. Undoubtedly the information in the Municipal Court must have the same degree of particularity in alleging the offense as is required of an indictment, for which it is a substitute. One important reason for such particularity is the protection of the accused if he be convicted from a second charge for the same offense. -
[12] We cannot agree with the decision of the Texas court in Irving v. State, 73 Tex. Cr. Rep. 615, 166 S. W. 1166, cited by the defendant, where an information which charged the defendant with desertion of his wife, without giving her name, was held defective on that account. Presumably a man has but one wife, and her name is known to him, and to say that he was charged with desertion of an unknown and uncertain person occupying the legal status of a wife. is unfeasonably captious. But the case of State v. Bitman, 13 Iowa, 485, cited by the defendant, is more reasonable. There the defendant was charged with cruelly and inhumanely whipping and beating “his. own child, being about three years old,” without naming the child. A demurrer was filed in the lower court based on this objection and it being overruled and the defendant having been convicted, an appeal having been taken, the appellate court held the information defective by reason of the omission of the name of the child. Theoretically the court in the case cited was right, for there is no presumption that the accused has but one child about three 3'ears old, and he may have others within that description. But practically the omission is not a limitation on his right to be informed of the name of the person with respect to whom the offense was committed. ■ If as is the fact in this case he has but one child, he knows to whom the charge refers. This principle must not be extended beyond the relationship .of parent and child, or husband and wife, for it is based on the peculiar
■The solution Of--two-questions which’ temáiti to'be considered.-' depends largely upon questions of fact. It was shown as a4 Tact that- the-defehdanbdid notprovidefdrthe support and'iñáintenance of the child. - - It was- contended, -however; that1 it was not shdwn that 11 'without lawful excuse’ ’ he deserted or failed'tb support the' child or that the child was ‘ ‘in destitute and necessitous circumstances.’’ Was there ‘ ‘lawful excuse’ ’ for the-failureOf-the accused-to-support1 his child? '"v
[13, 14] The excuse given was that his wife Xvould not come with the child to live with him in a place to which he invited her to come. But it sufficiently appears from the evidence, that because of physical violence shown to her by him she was afraid to do so. Under the circumstances, even if the mother did refuse to bring the child to live with his father, there was no legal excuse for the failure of the father to support his child. Undoubtedly a husband has a right to establish the family domicile and in general it is the duty of his wife to live in that domicile, and she loses some of her rights to support in case she unreasonably refuses to do her duty; but there are reasons which may justify her in living elsewhere and fear of personal violence from her husband surely is a proper ■one.
After a careful consideration of the facts, we believe the court below was right in finding there was no lawful excuse for the failure of the defendant to provide for his child, without more fully stating the reasons therefor.
[15] Was the child in destitute and necessitous circumstances within the intendment, purpose and scope of the statute? A -child three years old, having no property, is in ‘ ‘destitute or neces
In Brandel v. State, cited above, the court there announced its view, calling it the ‘ ‘humane’ ’ construction of a statute precisely like that in Delaware:
“A wife is in necessitous circumstances * * * when she does not have property or money available for such necessities or ordinary comforts of life as her husband can reasonably furnish, even though she has the clothing, furniture, and ornaments usually owned by a woman in her station in life or receives aid from others.”
In State v. Waller, cited above, the court said of a similar act:
‘ ‘The essence of the act is that a man shall not be allowed to_ shift the-burden of supporting his wife and children upon others under no obligation tofo ear it, and possibly upon the state itself. Therefore, whenever a husband, without just cause, neglects or refuses to provide for the support and maintenance of his wife and thereby places her in such a situation that she stands, in need of the necessaries of life, it is not material that they are supplied by her own labor or by sympathizing relatives, friends, or strangers, so that she .does not infact suffer from privation. He is guilty if he leaves her in such dr-, cumstances that, without her own efforts or outside help, she would lack the-, necessaries of life.”
In State v. Bess, cited above, the court said:
‘ ‘The fact that the destitution and suffering of the children were relieved by the acts of kind and charitable friends does not, as counsel seem to contend, exculpate the defendant for his dereliction, if he were wilfully derelict in failing to relieve the wants and suffering of the children by providing them with the-' common necessaries of life.”
In this case the court viewed the statute as not only providing a punishment for dereliction of duty of a parent, but also a means of enforcing the continuing liability to provide support. Its.
The conclusion is, that there is no error in the record and none of the assignments of error are sustained.
The judgment of the court below will be affirmed.
Pennewill, C. J., concurred.