508, 42 N. W. 481; McReynolds v. People, 230 prescribe" or confine such phrase beyond its Ill. 623, 82 N. E. 945.

The only relation which the specific words bear to each other is that they are within that class of crimes known as misdemeanors. Within the class to which they all belong, they are of entirely different nature, and the punishments imposed respectively are to correct entirely different kinds of public wrongs, having entirely different characteristics.

Some of the offences specified are mala prohibita and some are mala per se. In this respect they are dissimilar. Some are common law crimes and others are purely statutory.

To be sure the specified offenses were, at the time the Constitution was promulgated, well known and recognized, but if that should be a classification which would prevent the General Assembly from extending or conferring jurisdiction upon inferior courts of all new misdemeanors which might be created because of the growing complexity of society or because of the ingenuity of criminals then the jurisdiction of all new misdemeanors would, regardless of their nature, have to be conferred upon the Court of General Sessions. Nor can the enumerated offenses be classified as "petty misdemeanors." There are only two classes of crime known to the law of England or Delaware and they are felonies or misdemeanors.

natural and usual meaning.

From the whole Constitution it is appar ent that the general legislative power with respect to the jurisdiction of inferior courts was not intended to be limited as suggested by the plaintiff in error. In addition to the case of State v. Eckhardt, supra, 2 Lewis' Sutherland on Statutory Construction, § 437, announces the qualifications of the doc trine ejusdem generis:

The ordinary meaning of the phrase "and such other misdemeanors as the General Assembly may from time to time prescribe" is broad and unlimited except in three particulars: (1) That jurisdiction can never be conferred on inferior courts except by a two-thirds vote of the members of the General Assembly; (2) jurisdiction can never be conferred upon an inferior court of a crime deemed a felony; and (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.

From an examination of the whole constitution it is evident that the Constitutional Convention intended to give to the General Assembly very broad powers with respect to the jurisdiction of courts. and section 20, art. 4. Section 1, art. 2,

The convention was not satisfied with exNor can the offenses specified fairly be call-pressly vesting the general legislative power ed, as a class, "petty misdemeanors," even if there was such a classification because some are inherently serious.

*

in the General Assembly (section 1, art. 2) but to emphasize the extent of that power over the jurisdiction of the constitutional It is argued that the word "such" in the courts, expressed itself as in section 20, art. clause "and such other misdemeanors as the 4. It will be borne in mind that the clause General Assembly from time to time * prescribe" is used to qualify the word “misdemeanors." The word “such” is both an adjective and a pronoun. If it had been the intention of the convention to qualify the word "misdemeanors" with the word "such," they could and probably would have used it in such juxtaposition as to indicate that intention, and would probably have written the clause “and other such misdemeanors." Century Dictionary also defines "such" as:

"II. Pronoun. Such a person or thing; more commonly with a plural reference, such persons or things; by ellipsis of the noun. 'Such as sit in darkness and in the shadow of death.'

"and such other misdemeanors as the General Assembly may from time to time * prescribe" and the proviso that there should be an appeal to the Court of General Sessions when the punishment exceeds one month imprisonment or one hundred dollars fine, are new to the Constitution of 1897.

Assembly power to invest inferior courts with The general words which give the General jurisdiction in any misdemeanor are a corollary to the express power of the General Assembly to repeal or alter the jurisdiction of the constitutional courts. The three qualifications of the general power mentioned are indicative that they were the only limitations intended to be placed upon the General Assembly. It can hardly be urged that while the General Assembly had power, with a concurrence of two-thirds of its members, to and had full power to repeal or alter any law create any inferior court (section 1, art. 4) Within the rule laid down above there is giving jurisdiction to the Court of General lacking in the specified offenses that simi- the last mentioned power, the Court of GenSessions and though it could divest, under larity which makes them of such a class hav-eral Sessions of jurisdiction in all misdeing such a common analogy as to persuade meanors, it could not invest one of the inthat it was the intention to limit the natural ferior courts created by it with jurisdiction significance and meaning of the general of such offenses. words "such other misdemeanors as the General Assembly may from time to time

The word "such" is such in conjunction with the word "as" in lieu of the word "that" and the clause might as readily have been written and as easily read "and other misdemeanors that the General Assembly may prescribe."

"The people in framing the Constitution committed to the Legislature the whole law-making

power of the state which they did not expressly | sistency between the two informations; they or impliedly withhold. Plenary power in the Legislature, for all purposes of civil government, tion in the lower court in an appeal case, were in harmony. If there was no convicis the rule." State v. Fountain, 6 Pennewill, 520, 529, 69 Atl. 926, 930; People v. Draper, 15 N. Y. 532.

An appeal is not a common law remedy,

but must look to some enactment for its ex

istence. In this particular case it exists by reason of the provision of section 30, art. 4, of the Constitution.

The foregoing, provision of the Constitution was not contained in that of 1832, and makes its appearance first in the Constitution of 1897, and consequently there was no law or no practice established in this state with direct reference to this provision. Since the Constitution of 1897 the General Assem

bly has provided no law governing the practice or procedure in the event of appeals under the foregoing provision, and that practice has arisen from analogy to the practice on appeals from the Municipal Court for the City of Wilmington upon convictions for violation of a city ordinance. Pratesi v. the Mayor and Council of Wilmington, 4 Pennewill, 258, 54 Atl. 694.

or if the conviction was for an offense different from that tried in the appellate court, quired to set the fact up by way of ples it is submitted the defendant should be re it is to be assumed that he waives the ob and if the case goes to trial on the merits jection.

In criminal matters of this kind two reme

dies are open to the defendant:

1. Appeal where the upper court hears anew all evidence, not confining itself solely to the evidence below, and renders a judg ment of its own.

in law.

2. Certiorari, which brings up the recor in the lower court for review for sufficiency By analogy to the rule applicable to civil appeals from justices of the peace, the defendant should be required to elect which remedy he desires.

No prejudice has been done to the defendant in this case. If he had pleaded that the offense in the upper court was different from the offense in the lower court and had won on that plea, after hearing, he would have gone free. If on the other hand he had lost on that plea he would not have been prejudiced because then the fact would have been determined against him. Instead of taking his appeal, the defendant could have taken a writ of certiorari and attacked the judgment below because of defect in the information. If he had won on this his rights would have been secured, if he had lost, there would have been a judgment affirming the judgment below.

The analogy between the practice under appeals taken by virtue of the constitutional provision with that of appeals to the Superior Court from a Municipal Court is the closest for which any provision for procedure is made and was the more readily followed because, due to the activity and importance of the Municipal Court and the frequency with which appeals had been previously taken from that court to the Superior Court, a practice was established which could be easily followed and which has been consistently followed in the Court of General Sessions in all cases upon appeal under the Constitution. Practice in appeals provided for by stat-prisoned, and the Pratesi Case established ute and which was followed in the Pratesi Case can only arise after an actual trial and judgment in the Municipal Court involving a sentence of imprisonment.

An examination of the records of the Court of General Sessions since 1897 shows the following appeals to have been taken: (Twenty).

An appeal in a criminal case is different from appeals in civil litigation. It differs in these respects: (a) No evidence comes up; (b) new testimony is taken; (c) an independent judgment is rendered in the appellate court; (d) no mandate is sent back to the lower court.

The General Assembly had already provided a procedure in a statutory appeal in criminal cases where defendants had been im

and defined that procedure. As has been shown that procedure was adopted and has been consistently adhered to in every appeal in the Court of General Sessions since the new Constitution. Until changed by the General Assembly, this practice should have all the force of statutory law of this state.

The Court of General Sessions and the Except in the three appeals where a nolle | Municipal Court have concurrent jurisdiction prosequi was entered and another which of the offenses in the non support act. If was dismissed, there have been new infor- a defendant should be brought before a jusmations filed in every appeal to the Court of tice of the peace he would be held to bail or General Sessions. committed to appear in either of said courts. If the defendant is held for the Court of General Sessions, he is indicted by the grand jury. If he is held for the Municipal Court and there convicted he takes his appeal to the Court of General Sessions and there an information is filed. By whichever route he may travel, he comes to the Court of GenThe information below sets out an offense. eral Sessions and the only difference in the Assume it was not set out with sufficient procedure is in the fact that when his case particularity yet it unquestionably describ- comes directly from a justice of the peace ed an offense. The information above de- he is indicted, when it comes by way of scribed a similar offense with greater par- the Municipal Court he is informed against. ticularity. There was no apparent incon- If we are right in maintaining the prac

tice established, then the information in the Municipal Court has no place or part in the Court of General Sessions for the one statute which defines method of procedure on appeal from an inferior court, provides that the “filing of transcript, modes of trial and forms of proceeding shall be as in cases of appeal from the judgments of justices of the peace," upon which the transcript of the record only is filed.

not applicable and the allegation is not s plusage it is submitted that the state showed that the failure of the plaintiff in error support his child was "without just cause It is hardly necessary to point out the d tinction between these cases, viz. State ↑ Langley, 248 Mo. 545, 154 S. W. 713, at! Mueller v. Mueller, 164 App. Div. 386. 17 N. Y. Supp. 204, and the one at bar. In bet cases the father endeavored to take care of his children even to the point of bringing proceeding for their custody and in neither case does it appear that the father was to blame for his wife's absenting herself. In the case at bar Donaghy inflicted physic

The Constitutional Convention was perfectly cognizant of the fact that testimony is not preserved or taken in the inferior courts and when it provided for an appeal it meant an entirely different thing than that which is known to equity and admiralty jurispru-abuse upon his wife so as to make her afraid dence where the whole record, pleadings and evidence, are taken to the appellate tribunal. There is no warrant at the common law for trial upon a record in criminal cases, but there is and the courts are familiar with proceeding initiated by indictment or information.

The plaintiff in error, having elected to have his case heard upon the merits, complains because the information is more specific and certain than that in the court below, but the proceeding being de novo as to pleading, not only upon practice but upon the reasons therefor, there is properly in the appellate court no information with which the comparison can be made.

of him and then would do nothing for his child, apparently using the child's dependent condition as a lever to compel his wife to return to him. We have not had access to People v. Rubens, 92 N. Y. Supp. 121.

Coming to the question of what is meant by the phrase "in destitute or necessitous circumstances" there are two lines of cases. upon which the plaintiff in error relies and those upon which the state relies.

The former arise under statutes, or con structions of statutes, distinctly different from ours whereas the latter cases construe and apply statutes precisely like ours except as to the term of imprisonment.

State v. Thornton, 232 Mo. 298, 134 S. W. 519, 32 L. R. A. (N. S.) 841, is founded upor a statute which is dissimilar to ours and which requires the neglect of the child to be such that "his life shall be endangered or his health shall have been or shall be likely to be permanently injured."

The Georgia cases are considered in the case of State v. Bess, 44 Utah, 39, 137 Pat. 829.

The right of the accused to appeal as provided by law in other cases is preserved in the Non-Support Act. Section 2, c. 262, vol. 27, Laws of Delaware. The General Assembly could not have meant the constitutional appeal already secured by the Constitution to defendants. At the time of the enactment of the statute, the right of appeal from the Municipal Court in criminal cases was provided for by section 23, of chapter 207, vol. 17, Laws of Delaware, in which the proAs to Richie v. Comm., 23 Ky. Law Rep cedure was specified. The law and practice | 1237, 64 S. W. 979, it will hardly be contended being in this state it is respectfully submitted that to make a father a violator of our statthat the General Assembly knew of that ute that he must leave a child to "starve or law as to appeal and the established prac-freeze." tice and by the provision in the Non-Support Act adopted the appeal and procedure thereon set out in said section 23.

Upon appeal to the Court of General Sessions the whole procedure is de novo, pleading as well as evidence, for the purpose of trying the case upon its merits solely and not for the purpose of raising questions that could be more appropriately raised by certiorari.

The third proposition of the plaintiff in error is expressed in his question:

"What constitutes 'without lawful excuse' and in destitute or necessitous circumstances' under section 1, ch. 262, vol. 27, Laws of Delaware?"

Under the authority of State v. Quinn, 2 Penn. 339, 45 Atl. 544, the phrases in the statute "without lawful excuse" need not have been alleged. But assuming for the

There are two decisions in particular upon statutes precisely like our own to which we desire to call particular attention. State v. Waller, 90 Kan. 829, 136 Pac. 215, 49 L. R. A. (N. S.) 588; State v. Bess, 44 Utah, 39, 137 Pac. 829; also Brandel v. State, 161 Wis. 532, 154 N. W. 997.

To the same effect are the cases cited in State v. Bess, supra, and also State v. English, 101 S. Car. 304, 85 S. E. 721, LR. A. 1915F, 977.

It was not only shown that the plaintiff in error was without excuse for his neglect to support his child but, while possessing ample ability from an independent income and ability to work to support him, used the justifiable separation of his wife as a mere excuse and pretext, leaving his child dependent for the necessaries of life upon the gen

ment of the court of General Sessions should | or "of the kind," and that the legislature can be affirmed.

CURTIS, Ch. 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 in cases 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 Dela

ware?"

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.

give to the Municipal Court, or any other inferior court jurisdiction of misdemeanors of the same kind or like those enumerated in the constitution, and the particular misdemeanor of failing to support a wife or child is not like any other misdemeanors so enumerated. The Case of Hull, 18 Idaho, 475, 110 Pac. 256, 30 I.. R. A. (N. S.) 465, does not sustain the position taken by the defendant, because the general phrase there construed was "or any such," which is quite different from "and such other."

[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 constitu

tional 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. Incidentally this class of criminal matters relate to the promotion and enforcement of morality. Disturbances of reli gious meetings probably involve a breach of the peace, but a broader purpose may be to secure to the individual freedom in his right Nuisances

"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 to worship without annoyance. 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 persons or things of the same general nature or class as those enumerated. As has been said, such a rule is based on the obvious reason that if it was intended that the general words should be used in their unrestricted sense, no mention would have been made of the particular classes. The particular application of the rule made by the defendant to the constitutional provision in question is

are of many kinds, and do not necessarily involve a breach of the peace, and rarely do. Chiefly they relate to acts of conduct affecting injuriously the public health or morals. They differ in almost every way from every other criminal matter stated in the clause mentioned. It is clear, then, that there is no such general similarity between crimes that are distinctly breaches of the peace, those relating entirely to enforcement of revenue measures and those relating to the public health and morals, and so the rule of ejusdem generis does not apply here. The constitutional question as to jurisdiction is disposed of by the above consideration relat ing to the character of the above criminal matters without considering the punishments affixed thereto by the General Assembly.

[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.

violates in any other way the constitutional of such inferior courts was expressly given provision above quoted, for it was enacted to the General Assembly. The conclusion is, by a vote of two-thirds of the legislature, the then, that the Municipal Court of the City of offense created is not a felony, and an appeal Wilmington had jurisdiction of the criminal was provided. As has been pointed out, the matters contained in the Non-Support Act. constitutional phrase "such other misdemean- [6, 7] The next question relates to the proors as the General Assembly may * cedure on appeal and the filing of a new inprescribe" means naturally and according to formation in the appellate court. An appeal the usual meaning, as well as from the con- to the Court of General Sessions from the text, "other misdemeanors such as the Gen- Municipal Court having been taken by the eral Assembly may prescribe," and defendant, the Attorney General filed in the if it had been intended to qualify the word appellate court a new information differing "misdemeanors" to mean demeanors like in some respects from that in the lower those mentioned, the phrase used would nat-court, and it is claimed that this was error, urally and properly have been "and other and that the case must be proceeded with upsuch misdemeanors." on 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 not there any procedure provided as to the mode of taking or hearing the appeal, nor does any statute do so in explicit terms, but if at all only inferentially. Speaking generally, an appeal effects a removal of the cause to another tribunal and involves a hearing de novo on both facts and law, as distinguished from a writ of error or certiorari, by the use of which questions of law only are subject to re-examination. By the constitutional provision as to inferior courts the General As[4, 5] In holding that there was not in the sembly may by law regulate the jurisdiction section of the Constitution referred to a lim- to be conferred on such inferior courts, and itation upon the power of the General As- the General Assembly gave this jurisdiction sembly to give to the Municipal Court juris- to the Court of General Sessions and Municidiction of the criminal matters contained in pal Court of the City of Wilmington, "subthe Non-Support Act, no violence is done to ject to the right of the accused to appeal as the provisions of section 20 of article 4 of provided by law in other cases." (See secthe Constitution, whereby a broad power is ture having given to the Municipal Court of tion 2 of the Non-Support Act.) The legislagiven to the legislature to change the subject Wilmington, an inferior court of the state, matter to be adjudicated in the courts of the existing in 1897, the time when the Constistate of superior jurisdiction. By the last tution was adopted, jurisdiction of the Nonmentioned section, after defining by general Support Act, the duly established procedure words the jurisdiction of the Court of Oyer of that court was naturally and properly and Terminer, Superior Court, Court of Gen- adopted for the trial of cases arising under eral Sessions, Orphans' Court and Court of that law, including an information there filChancery, power was given to the General ed in place of an indictment. With equal apAssembly to repeal or alter the several juris-propriateness the method of taking appeals dictions in any matter, or giving any power to either of said courts. This provision in terms relates only to those of the superior courts there named, and theretofore established and then existing, and not to the then existing inferior courts, none of which was viz. in other cases which the Municipal Court named, or to any such inferior courts as may had theretofore been given jurisdiction to hereafter be created. Neither does it infer- hear and determine, and with respect to entially limit the power of the legislature to which the judge of that court was not sitting alter the jurisdiction of any existing inferior merely as a committing magistrate, but to court, such as the Municipal Court of Wil- adjudicate a cause. In the statute respectmington, by giving to it jurisdiction of othering the Municipal Court of Wilmington there misdemeanors than those enumerated in sec- are two sections to be considered, viz. section tion 30 of article 4 of the Constitution, as 23 and section 21 of volume 17, Laws of Delherein above quoted, for obviously there is aware, c. 207. By section 23 a person against no relation between the two kinds of courts, whom a judgment has been entered in that and besides (which must be conclusive on the court for violation of a city ordinance, and point) in another section of the same Con- who has been committed for failing to satisstitution the power to alter the jurisdiction | fy the judgment, may appeal to the Superior

from the judgments of the Municipal Court should be adopted, as the most natural meaning of the statute giving to the defendant convicted under the Non-Support Act an appeal "as provided by law in other cases,"