Opinion
July 28, 1950.
WOLCOTT, J., sitting.
Joseph H. Flanzer, Deputy Attorney-General, for the State. E.N. Carpenter, II, for the defendant.
This is an appeal from the Family Court for New Castle County to which the case had been referred from the Municipal Court of the City of Wilmington. The defendant was charged in the Family Court with bastardy and non-support of an illegitimate child, and, after trial, was found guilty of non-support and an order of support entered. From this conviction, the defendant appealed and the State filed an information charging in the following language: "That Charles Harris, Jr., late of Wilmington Hundred, in the County and State aforesaid, on the twenty-second day of April, in the year of our Lord one thousand nine hundred and forty-nine, with force and arms, at said Wilmington Hundred, in the County aforesaid, did then and there have sexual intercourse with one Gloria Glasco, who, as a result of said sexual intercourse, was delivered of a bastard male child, on the Thirty-first day of December, in the year of our Lord one thousand nine hundred and forty-nine, and the said Charles Harris, Jr. is the father of the said bastard male child, against the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the State."
The defendant moved to quash the information in this court on the grounds that (1) this court has no jurisdiction because the complaining witness and the illegitimate child are non-residents of the State of Delaware and that the child was born in the State of Pennsylvania, and (2) that the information does not charge the defendant with the same offense for which he was tried below. The motion to quash is supported by an affidavit setting forth the facts on which the assertion of non-jurisdiction is premised.
Court of General Sessions for New Castle County, Bastardy, No. 27, May Term, 1950.
The transcript of the record below discloses that the defendant was tried and convicted in the Family Court of this county on a charge of non-support of an illegitimate child. The appeal to this court was taken from the order adjudging him guilty of non-support of the illegitimate child. The information filed against him in this court as a result of his appeal, however, charges him with the offense of bastardy.
In Monastakes v. State, 2 W.W. Harr. 549, 127 A. 153, the Supreme Court of Delaware held that criminal appeals to the Court of General Sessions from inferior courts, while tried de novo in the Court of General Sessions, nevertheless, must be for the same offense that was tried in the inferior court.
The information filed in the Court of General Sessions is based on a transcript of a record sent up by the court below and must necessarily be for the same offense which the transcript discloses was the offense for which the defendant was tried.
In the case at bar, the defendant was tried below for the non-support of an illegitimate child under Section 3527, R.C. 1935, as amended. The information on file in the Court of General Sessions is for the offense of bastardy and does not charge non-support. The offense charged is brought under an entirely different chapter of the Revised Code and is not the same offense for which the defendant was tried below. The information is therefore quashed.
This ruling makes it unnecessary to consider the first reason assigned in the motion to quash.