Donaghy v. State

• Decision Date: 28 February 1917
• Citation: 29 Del. 467,100 A. 696
• Court: Supreme Court of Delaware
• Parties: THOMAS H. DONAGHY, defendant below appellant, plaintiff in error, v. THE STATE OF DELAWARE, plaintiff below respondent, defendant in error

100 A. 696

29 Del. 467

THOMAS H. DONAGHY, defendant below appellant, plaintiff in error, v. THE STATE OF DELAWARE, plaintiff below respondent, defendant in error

Supreme Court of Delaware

February 28, 1917

Supreme Court, No. 2, June Term, 1916.

CERTIORARI to the Court of General Sessions, New Castle County.

Thomas H. Donaghy was tried on an information, in the Municipal Court of the City of Wilmington, for non-support of his minor child. Adjudged guilty, sentenced to pay a fine, and ordered to pay a certain sum by monthly installments for the support of the child. He appealed to the Court of General Sessions.

The Attorney General filed a new information on appeal in the Court of General Sessions, No. 49, March term, 1915. The accused was tried, convicted and ordered to pay a smaller sum for support of the child and costs of prosecution. He brings certiorari. Judgment affirmed with directions. BOYCE, J dissenting. PENNEWILL, C. J., dissenting in part.

Same case on demurrer to the information in the Court of General Sessions. Boyce, 99 A. 720.

The statute under which the accused was prosecuted is contained in the Revised Code 1915, and the pertinent sections are:

"Sec 3034. That any husband who shall, without just cause, desert or wilfully 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 wilfully 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 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.

"Sec 3035. Proceedings under this act may be instituted upon complaint made under oath or affirmation by the wife or child or children, or by any other person, against any person guilty of either of the above-named offenses. The Court of General Sessions, and the Municipal Court for the City of Wilmington shall have 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 hereinbefore 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 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.

Counsel for the accused moved to quash the information, which motion was denied. Thereupon, after hearing the evidence, the Municipal Court adjudged the accused guilty and did order him to pay or cause to be paid to Frank Stout, trustee, of whom the court approved, the sum of six dollars per week for the support and maintenance of his minor child under sixteen years of age; and also, to appear personally in the said court whenever thereafter ordered to do so; and also, to comply with the terms of the order of support, or of any subsequent modification thereof; and also, that he be released from custody on probation upon entering into recognizance with surety to the State 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.

On appeal to the Court of General Sessions, the information filed by the Attorney General, set forth the judgment of the Municipal Court, and charged the accused in six counts with various violations of the statute. The first charged that the accused "unlawfully and without lawful excuse did wilfully neglect to provide for the support and maintenance of his child, to wit, one 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. * * *" The 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.

Thereupon the accused demurred to the information and each of the counts thereof, 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. At the close of the testimony, the court was requested on behalf of the accused, to find as matters of fact, in substance: That at the time the wife of the accused separated from him taking Henry Donaghy, the child, with her, and going home to her parents, he (the accused) was a resident of the city of Wilmington, Delaware; that from that date he moved to Atlantic City, New Jersey, with the intention of making that his legal residence and that his wife was requested to come there with him; that his wife has since refused to live with him at Atlantic City; that from and since the time of the separation, his wife has retained and enjoyed 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...