Evening journal., 1902-01-06
COURT GIVES
TWO OPINIONS
Judge Explains Why City
Court Cannot Lash
DECISION IN The LYNN VENUE
Chief Justice Lore Gives Reasons
for Refusing TO Allow Case
Carried to Kent

After opening Superior Court this
morning, Chief Justice Lore informed
the members that there we're several
opinions to be delivered by the. court
before any other business was taken
up.
lie then called upon Judge Spruance
TO deliver the opinion of the court in
the case of Anton ZuchbOwsh, who was
sentenced by the Municipal Court to be
imprisoned and whipped for assaulting
his wife. The decision is a reversal
OF the court below, and is, in part, as
follows:
1t appears by the record Of the Mu-
nicipal Court for the city of Winning
ton that the defendant was, on Novem-
Der 6. 1901, convicted in said court OF
an assault and battery upon his wife,
and sentenced to pay the costs OF
prosecution, to be imprisoned for ten
days and to be whipped with fifteen
lashes.
The case having been brought to this
court by a cerhorari at The suit of theI
defendant. he was excepted to the
jurisdiction of the court below. The
judge recited that the prosecution was
under the new wife-beating act, and
quoted from the act creating the Mu
niclpal Court with especial reference
to assaults and batteries. The assaults
and batteries of which the said Mu-
nicipal Court has jurisdiction are COM
mon-law Offenses, and not statutory as
saults and batteries, punishable by ig
nOminous penalties usually inflicted
upon felOns. It Is inconceiv-
able that the legislature or COnstitu-
TiOnal Convention has Intentionally
conferred upon said Municipal Court
jurisdiction Of an Offense punishable by
whipping OF otler ignOmiuous penalty
without jury trial and without appeal
The defendant was tried by the court
below without appeal, and the right of
appeal is not expressly given him by
the Constitution or any statute.
Section 80, of article 4, of the pres
emit Constitution in reference to the
jurisdiction of inferior courts provides
that there shall be an appeal to the
Count clf General Sessions in all cases
DIN which the sentence shall be impTis-
onment exceeding one month, or a fine
exceeding $780,"
This is a clear indication of the pur-
pose of the convention to limit penal
ties to be Imposed by inferior courts
established or to be established to
is not so, the Legislature might i'm
pose the death penalty for any Of the
offenses. Of which an inferior court
has, or may have jurisdiction, and the
sentence Of sud.h court would be final.
This. of course, is incredible.
Il will be observed uhat the act Of
February %, 1901, (the wife-beating
act), does not expressly confer upon
sand Municipal Court jurisdiction OF
the offenEe thereby created, and il
probable that such was not the inten-
tion of the Legislatures, as said act
does not appear to have been passed
with the concurrence of two-thirds OF
all the members elected to each house,
as required by section 30. article 4, Of
the Constitution, to give jurisdiction to
inferior courts of other misdemeanOrs
than those enumerated in said section.
We are of the opinion that the said
Municipal Court had no jurisdiction OF
the offense OF which the defendant was
convicted. Judgment below is reversed.
Chief Justice Lore read the follow
ing opinion of the court in the venue
feature of the Lynn case:
After noting the defendants reasons
for asking for a new trial. the opinion
sets out that the affidavit produced
by the State makes 1t manifest that
there is no prejudice against john
Lynn, and therefore the allegation Is
mot sustained. The second reason foI
a change of venue, viz, the pecuniary
interest of the judges and jurors whc
are to try the case. if it be true. un-
questionably disqualifies them, and the
change of venue should be granted.
1t is a fundamental maxim of ou
TI..r f1,ne I..1N Nr.tA sud IL
his own cause; while IL is equally true
that the Ihumblest, as well as the mos
depraved are guaranteed a fair trial by
an impartial jury.
The opinion sets out several authori
ties on change of venue, and undel
them it cannot appear that the judges
and jurors, as taxpayers of New Castle
county. are not interested in such
substantial way as to disqualify them
Under the act of 1881. providing 70
fines. provision is made that all fine
or forfeitures shall belong to tn
county in which they are incurred. ant
under this act it seems that If the cas-
was moved to either of the lower coun
ties, the fine, if any, would go to tina
we see no reason to prevent the de
PENDANTS allegation, the court wOull
be Interested as residents of that coun
ty. From all that appears in the cas-
we see no no reason to prevent the dc
fendant from having a fair and i'm
partial trial The change of venue
refused.
The case of john c. Rlrtan agains
Patrick Fahey, in which the plainti
IS suing for $1,000 damages for "a
assault alleged to have been made upc
him by Mr.. Fahey, was continued IN
t,r the February term. Walter
Hayes represented Mr. Fehey sn
Harry Emmens represented Mr.. Kutar