State v. Donaghy , 6 Boyce 344 ( 1915 )

Heisel, J.

delivering the opinion of the court:

Demurrer to an information filed by the Attorney General in an appeal from the Municipal Court of the City of Wilmington, to the Court of General Sessions under the provisions of Article 4, § 30, of the Constitution.

The information below charged:

“ That Thomas H. Donaghy, late of Wilmington, in the county aforesaid, on the first day of May in the year of our Lord one thousand nine hundred and thirteen at said Wilmington, and within the jurisdiction of said Municipal Court, did unlawfully, without just cause, willfully neglect to provide for the support and maintenance of his minor child under sixteen years of age in destitute and necessitous circumstances, against the form of the act,” etc.

The transcript shows that on the third day of March, 1915, the defendant below appellant was adjudged guilty, and sentenced, inter alia, to pay a fine of two hundred dollars and the costs of prosecution.

On the same day the defendant below appellant appealed from the judgment of the Municipal Court and entered into proper recognizance to prosecute said appeal and to abide by any judgment which might be rendered in this court against him.

Upon the record sent up, the Attorney General filed a new information containing six counts, to which information, counsel for appellant entered a general demurrer, alleging as his grounds of demurrer:

(1) That upon an appeal to the Court of General Sessions under the provisions of Article 4, Section 30, of the Constitution of 1897, no new information may be filed by the Attorney General, but the case must proceed upon the record of the court below.

(2) That the information filed by the Attorney General fails to correspond with the record of the prosecution below in the cause of action.

(3) That each count of the said information fails to correspond with the record' of the prosecution below in the cause of action.

(4) That the issues which would be raised upon the said information and each count thereof, are not the issues which were raised before the said Municipal Court.

(5) That the first and second counts in the said information fail to state a cause of action against the form of any act of the General Assembly.

(6) That the third and fifth counts in the said, information do not plainly and fully inform the accused of the nature and cause >f the accusation against him.

That part of Article 4, § 30, applicable to this case is as follows:

“ The General Assembly may by law regulate this jurisdiction [inferior courts and justices of the peace], 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.”

Chapter 262, § 1, Vol. 27, Laws of Delaware, now Section 3034, Code of 1915, under which the appellant was convicted, provides:

“Any husband who shall, without just cause, desert or willfully neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitous circumstances, or any parent who shall, without lawful excuse, desert or willfully neglect or refuse to provide for the support and maintenance of his or her legitimate or illegitimate child or children, under the age of sixteen years, in destitute or necessitous circumstances, shall be guilty of a misdemeanor; ” and upon conviction may be fined not exceeding five hundred dollars or imprisoned not exceeding one year, or both.”

Upon his first ground of demurrer counsel for appellant contends that, in appeals under Article 4, §30, of the Constitution, the case is not tried de now, either as to the pleadings or as to the evidence, but that the judgment below must be affirmed or reversed upon the law and facts as disclosed by the record sent up.

While neither by the Constitution nor by statute, has the procedure upon appeals under said section 30 been provided for, an examination of the numerous acts of the Legislature giving the right of appeal to the'Court of General Sessions from Justices of the Peace, clearly indicates that such procedure should follow the practice in civil appeals to the Superior Court. In some instances the Legislature has provided, that in appeals in criminal cases, the defendant “shall tender proper security for the payment of the fine and costs as in civil cases.” In other instances, the statute has provided that upon appeal the Attorney General shall appear and prosecute the case.

■[1] It seems, that in such cases as have been appealed from the Municipal Court to this court, the practice has been for the prosecution to proceed upon information filed by the Attorney General. For these reasons, we are satisfied that appeals taken under Article 4, § 30, of the Constitution should be tried de novo, both as to pleading and evidence, as in civil suits. That is, it should be tried in this court, de novo, upon information filed by the Attorney General, based upon the transcript of the record of the court below.

We now come to consider the other causes of demurrer, which are based upon alleged deficiencies in the information filed by the Attorney General.

The objection to the first count is, that in the information below, upon which the appellant was tried, he was charged with' having “■unlawfully without just cause, willfully neglected to provide,” etc., whereas the information in this court sets forth, that such “willful neglect to provide” was “without lawful excuse,” and that therefore there is such a variance from the information below as to make the first count objectionable.

[2] The information filed by the Attorney General followed the statute. If the Attorney General has the right to file a new information on appeals, he. has the right to file a proper one under the statute, so long as he does not state a different cause of action or offense. We think he has not stated a different offense in the first’ count of his information, from that stated in the information below.

[3] The same reasoning applies to the objection to the second count. In the information filed below, the name of the child, which appellant is charged with neglecting to support, was not set out, while in the information filed by the Attorney General the child’s name is set out. This does not change the offense charged in the .information below, but sets it out more specifically. If it could have any effect, it would be to limit the scope of the evidence necessary to be met by appellant, and would be to his advantage rather than to his disadvantage.

In the third and fifth counts of the information filed by the Attorney General, the appellant is charged with having deserted his minor child; and, in the fourth and sixth counts, with having refused to provide for the support and maintenance of his child.

The information below charged only “willful neglect to provide.” Does such a charge include “to desert” or “refusal to provide,” or are they separate and distinct offenses under the statute?

The statute provides that:

“Any parent who shall, without lawful excuse, desert or willfully neglect or refuse to provide for the support and. maintenance,” etc.

[4] We think to desert a child or to refuse to support a child are distinct offenses, under the statute, from willfully neglecting to support; and not having been charged in the information below, they cannot be charged in the information filed upon appeal.

HI We therefore order that the demurrer be overruled as to the first and second counts and sustained as to the third, fourth, fifth and sixth counts.