of Delaware, in the sum of five hundred dollars for compliance by him with the said order of support; and in addition to the foregoing order, did sentence him to pay a fine of two hundred dollars and costs of prosecution amounting to the sum of one hundred and eighteen and 84/100 dollars.

lawful excuse, desert or wilfully neglect or re- from custody on probation upon entering fuse to provide for the support and maintenance into a recognizance with surety to the state of his or her legitimate or illegitimate child or children, under the age of sixteen years, in destituto or necessitous circumstances, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine, not exceeding five hundred dollars, or by imprisonment with hard labor in such penal or reformatory institution of this state as may be determined upon by the court, for a period not exceeding one year, or both. And it is hereby made the duty of the parent of any illegitimate child or children, under the age of sixteen years, to provide for the support and maintenance of such illegitimate child or children.

On appeal to the Court of General Ses sions, the information filed by the Attorney General, set forth the judgment of the "Sec. 3035. Proceedings under this act may be Municipal Court, and charged the accused in instituted upon complaint made under oath or six counts with various violations of the affirmation by the wife or child or children, or statute. The first charged that the accused by any other person, against any person guilty "unlawfully and without lawful excuse did of either of the above-named offenses. The Court of General Sessions, and the Municipal wilfully neglect to provide for the support Court for the City of Wilmington shall have and maintenance of his child, to wit, one original and concurrent jurisdiction in all cases arising under this act, and unless the accused shall demand a trial by jury the trial shall in each case be by the Court without a jury, subject to the right of the accused to appeal as provided by law in other cases: Provided, however, that the proceedings, under this act, in the Municipal Court for the City of Wilmington shall be without indictment by grand jury or trial by petit jury.

"Sec. 3037. Before the trial, with the consent of the defendant, or at the trial, on entry of a plea of guilty, or after conviction, instead of imposing the penalty herein before provided, or in addition thereto, the court in its discretion, having regard to the circumstances, and to the financial ability or earning capacity of the defendant, shall have the power to make an order, which shall be subject to change by the court from time to time, as circumstances may require, directing the defendant to pay a certain sum periodically to the wife, or the guardian, or custodian of the said minor child or children, or to an organization or individual approved by the court as trustee, and to release the defendant from custody on probation, upon his or her entering into a recognizance, with or without surety, in such sum as the court or a judge thereof in vacation may order and approve. The condition of the recognizance shall be such that if the defendant shall make his or her personal appearance in court whenever ordered to do so, and shall further comply with the terms of such order of support, or of any subsequent modification thereof, then such recognizance shall be void, otherwise in full force and effect." The information filed against the accused in the Municipal Court charged that he "did unlawfully without just cause, wilfully neglect to provide for the support and maintenance of his minor child under sixteen years of age, in destitute and necessitous circumstances, against," etc.

Henry Donaghy, he, the said Thomas H. Donaghy being then and there a parent of the said Henry Donaghy, and the said Henry Donaghy being then and there the legitimate child of the said Thomas H. Donaghy, and being then and there a minor under sixteen years of age, and being then and there in destitute circumstances, against," etc.

The second was like the first, except that the child was alleged to be in "necessitous circumstances." The third charged that the accused "unlawfully and without lawful excuse did desert his child. fourth charged that the accused "unlawfully and without lawful excuse, did refuse to provide for the support and maintenance of his child. The fifth was like the third, and the sixth was like the fourth, except that the child was alleged to be in "destitute circumstances."

* *

Counsel for the accused moved to quash the information, and each count thereof, on the grounds that it failed to correspond with the record of the prosecution below in the cause of action. Motion refused.

information and each of the counts thereof, Thereupon the accused demurred to the

which demurrer was overruled as to the first and second counts and sustained as to the third, fourth, fifth and sixth counts. To the two counts sustained the accused pleaded not guilty and put himself upon the court for trial.

The prosecution on appeal came on for hearing before the Court of General Sessions. Counsel for the accused moved to quash At the close of the testimony, the court was the information, which motion was denied. requested on behalf of the accused, to find Thereupon, after hearing the evidence, the as matters of fact, in substance: That at Municipal Court adjudged the accused guil- the time the wife of the accused separated ty and did order him to pay or cause to be from him taking Henry Donaghy, the child, paid to Frank Stout, trustee, of whom the with her, and going home to her parents, he court approved, the sum of six dollars per (the accused) was a resident of the city of week for the support and maintenance of his Wilmington, Delaware; that from that date minor child under sixteen years of age; and he moved to Atlantic City, New Jersey, with also, to appear personally in the said court the intention of making that his legal resiwhenever thereafter ordered to do so; and dence and that his wife was requested to also, to comply with the terms of the order come there with him; that his wife has of support, or of any subsequent modifica- since refused to live with him at Atlantic

separation, his wife has retained and enjoy- | ed the custody and society of their minor child; that he has from and since that time been ready, willing and desirous to support his child, if he might have and enjoy its custody and society; that the child was not at that time and is not now in want of food, clothing or lodging, and is not likely to become a burden upon the state of Delaware. The accused also prayed the court to find as matters of law, in substance:

That it was incumbent upon the state to prove beyond a reasonable doubt that any neglect, on the part of the accused, to provide for the support of Henry Donaghy, the child, was without lawful excuse; that the word "wilful" in the statute means with evil intent or legal malice or without reasonable ground for believing the act to be lawful; that likewise it is incumbent upon the state to show that the accused has means or property with which to support the child, or that he is in health with ability to earn money for the support of the child; that the accused may not be convicted under the statute when the child is fully provided for by others; that the statute must be strictly construed, and if the child is receiving necessary food, clothing and lodging, there is no occasion for the state to enforce the statute in this case; that the child is improperly detained from the father, and that the improper detainment is a defense to the prosecution; and that, it being shown that the legal residence of the accused is in an adjoining state, he has committed no offense against the statute, if the child was detained in this state by the mother.

The court adjudged the accused guilty and made an order, similar to that made in the Municipal Court, that he pay the sum of four dollars instead of six dollars per week for the support and maintenance of his minor child, and that he pay the costs of prosecution amounting to the sum of twelve dollars and thirty-eight cents, the fine imposed below being omitted. The order so made was made retroactive and dates back, with respect to the weekly payments, to the date of the judgment of the Municipal Court. Certiorari was sued out of the Supreme Court to the Court of General Sessions.

The misdemeanor defined in the above sections of the statute is not one of "such other misdemeanors" as the General Assembly may by law give to any inferior court by it established, or to be established. The obvious basis of this contention is the doctrine of ejusdem generis, which is stated in 36 Cyc. 1119, 1120, and cases cited.

In the present instance it cannot be seriously contended that the framers of the Constitution meant to include any or all misdemeanors, for not only did they specify certain species of the genus which they had in mind, but they also qualified "other misdemeanors" not by the word "any" but by the word "such." The first or primary definition of the word "such" in the Century Dictionary and Cyclopedia is "of that kind"; "of like kind or degree"; "like"; "similar." A secondary meaning of the word is given as "the same as previously mentioned or specified"; "not other or different." In re Hull, 18 Idaho, 475, 110 Pac. 256, 257, 30 L. R. A. (N. S.) 465.

Endlich on Interpretation of Statutes, §§ 405-407, gives numerous illustrations of the application of the doctrine of ejusdem generis. The only question is whether the misdemeanor defined by the statute in question is of the same genus as the misdemeanors specifically enumerated in article 4, § 30, of the Constitution.

The misdemeanors therein enumerated are somewhat fewer than those enumerated in section 15 of article 6 of the Constitution of 1832. Such summary trials are in derogation of the common law and not only must the proceedings be in strict conformity to the statute which authorizes them, but also must the jurisdiction over the subject matter be plainly and fully conferred. 12 Cyc. 321.

The genus of which assaults and batteries, keeping without license a public house of entertainment, the unlawful selling of liquors, carrying concealed a deadly weapon, and nuisances are the species, may not be capable of precise limitation, but it cannot be held to include a misdemeanor such as is defined in section 1, c. 262, vol. 27, Laws of Delaware. The latter offense is distinguished from those enumerated in the Constitution: First, in that it is not of itself a breach of the peace and does not naturally or directly tend thereto; second, in that the penalty prescribed, including as it does a fine not exceeding five hundred dollars and imprisonment with hard labor for a period not exceeding one year, or both, makes the offense practically a felony in spite of its name; and third, in that the court has the power to make an order, in lieu of the above penalty or in addition thereto, directing the payment of unlimited Article 4, § 30, of the Constitution of the sums of money for an unlimited period of state of Delaware (1897) is recited.

The exceptions taken to the record by the plaintiff in error are numerous, but they involve in general only three questions, stated in the majority opinion of the court.

Argument of Counsel for Plaintiff in Error. The Municipal Court for the City of Wilmington has no jurisdiction in cases arising under chapter 262, vol. 27, Laws of Dela

ware.

Attention is directed to the scope and character of sections 1, 2 and 4 of the statute in

time.

Assuming that the General Assembly, prior to the passage of the statute, had never ex

Upon an appeal to the Court of General Sessions from inferior courts under article 4, § 30, of the Constitution of the state of Dela-peals in criminal cases from inferior courts ware, the Attorney General may not file a new information, or if he may, the new information must correspond with the original information in all matters of substance.

1. The information filed in the Municipal Court charged the plaintiff in error with The method and nature of an appeal from having committed a certain offense "without just cause," where as the information filed summary convictions before justices of the by the Attorney General charged that he had peace in England are described in chapter committed the offense "without lawful ex-4, vol. 2, of the first American edition in

1. That upon an appeal to the Court of So far as counsel for the plaintiff in error General Sessions from inferior courts under has been able to ascertain this is the first article 4, § 30, of the Constitution, no new in-case appealed to the Court of General Ses

tion of the offense, as charged before the magistrate, has been substantially modified or amended by the Attorney General. In the case of Bradfield v. State, 5 Boyce, 262, 92 Atl. 988, which was an appeal from the Municipal Court to the Court of General Sessions involving the same offense charged in this case, the new information filed by the Attorney General followed the exact wording of the original information in the statement of the offense. The state can scarcely rely upon practice to support its new information and then disregard the practice as established in the Bradfield and other cases. There is no authority either at common law or under our statutes for the filing of a new information.

held that no offense was charged in the information filed in the Municipal Court, by reason of the failure to use proper words to negative the exception contained in the statute.

The insertion in the new information filed by the Attorney General of the name of the person alleged to be injured was held by the learned Court of General Sessions not to change the offense charged, but to set it out more specifically. The court said:

"If it could have any effect it would be to limit the scope of the evidence necessary to be met by the appellant and would be to his advantage rather than to his disadvantage."

It is respectfully submitted that the appellant was unmistakably entitled to this ad

pal Court could have been legally rendered against him. It was not to acquire advantages of which he had been deprived that the appellant went into the Court of General Sessions, but to seek a reversal of the judgment of the Municipal Court because he had been deprived of advantages secured to him by the fundamental principles of criminal law. Persons other than the defendant and particularly the persons injured are uni

2. That the information filed by the At-vantage before any judgment of the Municitorney General failed to correspond with the record of the prosecution below in the cause of action and raised issues which were not the issues before the Municipal Court. Assuming for a moment that the case on appeal is properly de novo as to the pleadings, it is nevertheless true that the case is the same as the one upon which the judgment was entered below. Even in civil appeals where the procedure is naturally relaxed, the pro-narr. must conform to the transcript.versally required to be alleged in criminal If it should appear that the pro-narr. failed to correspond with the record of the case below in the cause of action, it would be struck out on application. 2 Woolley, § 1438; Townsend v. Steward, 4 Har. 94; Norton v. Janvier, 5 Har. 346; McDowell v. Simpson,

1 Houst. 467.

In those states in which appeals in criminal matters vacate the judgment of the magistrate and open the whole case for trial de novo in accordance with a statute to that effect, an objection to the sufficiency of the complaint may be made for the first time on appeal. Steuer v. State, 59 Wis. 472, 18 N. W. 433; People v. Belcher, 58 Mich. 325, 25 N. W. 303; State v. Howie, 130 N. C. 677, 41 S. E. 291.

That an appellant is to be tried for one and the same offense in both the inferior and the appellate courts is obvious in principle and well settled. 12 Cyc. 342; 1 A. & E. Enc. of Law, 627; Com. v. Blood, 4 Gray (Mass.) 31; Com. v. Phelps, 11 Gray (Mass.) 72.

them?

What were the changes made by the Attorney General and what was the effect of With regard to the substitution of the phrase "without lawful excuse" as used in the information filed in the Court of General Sessions for the phrase "without just cause" as used in the original information, it might reasonably be urged that the two phrases are synonymous and that the issues raised thereunder would be identical, if the General Assembly had not seen fit to differentiate between these two phrases and to use them in contradistinction to each other.

Under the strict rulings properly applica

proceedings for the identification as well as the material description of the offense. State V. Walker, 3 Har. 547; State v. Pollock, 105 5 Blackf. (Ind.) 343; Butler v. State, 5 Mo. App. 273, 79 S. W. 980; State v. Irvin, 3 Whart. Cr. Law, § 2445; Bac. Abr. Indict. Blackf. (Ind.) 280; 1 Chitty, Cr. Law, *213; G. 2; 2 Hawk. P. C. c. 25, § 71; 10 Enc. Pl. & Pr. 505, 506.

and State v. Bitman, 13 Iowa, 485, are exBrown v. Mayor of Mobile, 23 Ala. 722, actly in point and state the unquestioned law. See, also, Irving v. State, 73 Tex. Cr. Rep. 615, 166 S. W. 1166.

of pleading in criminal matters is stated in The reason for this and other similar rules 1 Bishop's Crim. Pro. § 517 et seq.

and “in destitute or necessitous circumstaneWhat constitute "without lawful excuse" es" under the statute?

Assuming that said Municipal Court had jurisdiction in this case and that the information filed by the Attorney General was properly and regularly filed, nevertheless the Court of General Sessions erred when it refused to enter a judgment of not guilty on the grounds that the state had failed to show that the minor child of the plaintiff in error was "in destitute or necessitous circumstances" or that the plaintiff in error had neglected to support his child "without lawful excuse." Taking the latter phrase first, it is obvious that "without lawful excuse" means something. State v. Langley, 248 Mo. 545, 154 S. W. 713.

The state did not prove that the neglect of the plaintiff in error was "without lawful excuse.'

be strictly construed was not applicable, but that the statute must be liberally construed in order that the legislative intent might be accomplished.

It may be noted that the court went so far as to hold that, even if the necessaries of life were amply supplied by the wife's own labor, the husband would still be guilty of a crime. Under such reasoning what meaning can the phrase "in destitute or necessitous circumstances" possibly have?

tradicts much of the testimony of Mrs. | and that the rule that penal statutes must Donaghy; but assuming the testimony of the latter to be entirely true in every particular, it is nevertheless submitted: First, that the plaintiff in error had a right to establish the domicile of the family; and second, that it was the duty of the wife to live in the domicile established by him. It is well settled that where a husband is ready and willing to take care of his wife and children, but the wife refuses to live with him and retains the custody of the children, the husband cannot be subsequently convicted of failing to support the children. People ex rel. Mueller v. Mueller, 164 App. Div. 386, 150 N. Y. Supp. 204; People v. Rubens, 92 N. Y. Supp. 121. The state can cite no authority under the so-called Uniform NonSupport Act or under the general poor laws, where it has been held that a father, who is willing, ready and desirous of supporting his child, is guilty of neglect to support that child by reason of the fact that he fails to support it, so long as it is kept out of his custody.

A still more important question is the meaning of the phrase, "in destitute or necessitous circumstances" as used in the act. There are two lines of cases: the one holding that the father is guilty of a misdemeanor even though the wants of the child be amply supplied by relatives or friends; the other holding that the father cannot be convicted unless it be shown that the child is actually in destitute or necessitous circumstances. It is respectfully submitted that the latter line of cases is founded in good reason and justice and that the learned court below erred in holding the contrary. See State v. Thornton, 232 Mo. 298, 134 S. W. 519, 32 L. R. A. (N. S.) 841; 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; Richie v. Com., 23 Ky. Law Rep. 1237, 64 S. W. 979.

In the case before the court, the testimony shows that since the separation of the husband and wife, the child and its mother have lived with the mother's father, Charles G. Guyer, and that the child has not been in want of necessary food, clothing or lodging while under its grandfather's roof.

The other line of cases are: State v. Stouffer, 65 Ohio St. 47, 60 N. E. 985; State v. Waller, 90 Kan. 829, 136 Pac. 215; 49 L. R. A. (N. S.) 588.

Although the statute is the same, there is a marked distinction between the Kansas case and the case before the court, in that the husband in the former case did not offer his wife a home or ask her to come to any other place where he would support her. In the Kansas case the court held that the statute in question was not a penal statute but remedial in its purpose, although it pro

The whole theory of punishment for crimes is based upon the injury done to society and not the individual.

The judgment of the Court of General
Sessions should be reversed:
First. Because the Municipal Court for the
City of Wilmington was without jurisdiction
in the cause.

Second. Because it appears by the record that the Attorney General filed in the Court of General Sessions an information de novo.

Third. Because it appears by the said record that the information so filed by the Attorney General failed to correspond with the record of the prosecution below in the cause of action.

Fourth. Because it does not appear by the said record that the plaintiff in error wilfully neglected to provide for the support and maintenance of his minor child "without lawful excuse."

Fifth. Because it does not appear by the said record that the minor child of the plaintiff in error was on May first, A. D. 1913, or has been at any time since then "in destitute or necessitous circumstances."

Argument for the State.

The first proposition of the plaintiff in error is: The Municipal Court for the City of Wilmington has no jurisdiction in the cases arising under chapter 262, vol. 27, Laws of Delaware.

The argument in support of this proposition is founded entirely upon the doctrine of ejusdem generis.

It is submitted that the doctrine invoked does not apply:

(a) Because the specific words assumed to limit and confine the general phrase "and such other misdemeanors as the General Assembly may from time to time prescribe" have no common analogy to each other.

(b) Because from the whole constitution the intention appears that it was not intended to limit the legislative power of the General Assembly in the manner suggested.

The specific words assumed to limit and confine the general phrase "and such other misdemeanors as the General Assembly may from time to time prescribe" have no common analogy to each other. State v. Eckhardt, 232 Mo. 49, 133 S. W. 321; Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann.