Opinion
09-26-1929
SWEETMAN v. STATE.
Charles F. Richards, Deputy Atty. Gen., for the State. William Prickett, of Wilmington, for defendant. Court of General Sessions for New Castle County.
Appeal from Municipal Court of City of Wilmington.
Information against William Sweetman on appeal from municipal court for failure to support two minor children.
Verdict of not guilty directed.
RICE, J., sitting.
Charles F. Richards, Deputy Atty. Gen., for the State.
William Prickett, of Wilmington, for defendant.
Court of General Sessions for New Castle County.
Information on appeal from the Municipal Court of the city of Wilmington for failure to support two minor children; said information being No. 82, September term, 1929.
It appeared from the evidence produced by the State that Sweetman and his wife had lived together in the State of Delaware but had separated in that State some years before the year 1929. At the time of the separation the wife took their two small children and went to live with her father in the State of Pennsylvania, but her husband still continuedto reside near Cooch's Bridge, in the State of Delaware.
In January, 1929, Sweetman was arrested on process issued out of the Municipal Court of the city of Wilmington for having failed to support his children for a period of approximately twenty weeks prior to that time, and when they were residing with their mother in the State of Pennsylvania. A support order was made by that court, and Sweetman subsequently appealed to this court.
At the close of the State's testimony, Sweetman's attorney requested the court to direct the jury to find a verdict of not guilty because it had appeared from the evidence produced by the State that his children were not residents of, or even domiciled in the State of Delaware during any of the period of time that the information alleged, and the proof showed that he had failed to support them; and because he had, therefore, not committed any offense against the laws of that state.
In support of this motion, he cited Ex parte Lewis, 34 Nev. 28, 115 P. 729, and People v. Spiegel, 220 Ill. App. 129.
The state contended that the statute, relating to nonsupport (section 3042, Rev. Code 1915) provided that "An offense * * * shall be held to have been committed in any County in which such * * * child or children may be at the time such com/plaint is made"; that it did not use the word "reside" and that residence of the children was, therefore, not necessary to sustain a conviction on that charge.
RICE, J., in directing the jury to find a verdict of not guilty, as requested by the defendant, said:
The motion, on behalf of Sweetman, is based on the fact that the State has failed to prove venue as set forth in section 3042, of the Revised Code of 1915, which provides:
"An offense under Sections 2 to 14, inclusive, of this Chapter, shall be held to have been committed in any County in which such wife, child or children may be at the time such complaint is made. It shall be the duty of the State, in any case in which application is properly made by the officers responsible for the execution of the law, to provide the funds necessary for the extraditing of any person charged with an offense under said sections who has gone to another State."
There is no evidence before the court to prove that the children, for whose support the defendant is charged with the failure to provide, were in this County at the time the complaint was made in the court below. In fact, the Attorney General admitted that he could not prove that they resided here at that time and it clearly appears from the evidence that they then resided in Pennsylvania.
The statutory words "shall be held to have been committed in any County in which such wife, child or children may be at the time such complaint was made" cannot be construed to include persons who are only transients or mere visitors in this State at the time such complaint was made; nor was it the intention of the Legislature to exclude from the benefits of the statute, a wife, or child, or children who, while actually residing in this State, were only temporarily absent at the time of the complaint.
However, the words of the statute cannot readily be construed to include persons who were neither in the State when the complaint was made, nor residing here at the time, which appears to be the situation in the present case.
For the reasons stated, you are directed to return a verdict of not guilty.