The Wilmington daily Republican., 1902-01-06
TWO OPINIONS
HANDED DOW N
oIn Superior Court this morning
two opinions which have been de-
cided some weeks ago, were handed

two opinions which have been de
cided some weeks ago. were han ded
down.
Que was in the Lynn case for re-
fusing a change Of venue. aud the
other in the case Of Anton Zuckow-
ski VS.. State OF Delaware.
1t appears by the record of the
Municipal Court for the city Of
Wilningt that the defend Mt
was on November 9th. 1901. con-
victed 10 said court Of an assault
and battery on his wife aud SEN
tenced to pay the costs Of prosecu-
tiou, TO be imprisoned for ten days
and to be whipped with Is lashes.
The case having been brought to
this court BY a certiorari at suit of
defendant. he has excepted 10 the
jurisdiction Of the court below. The
Judge recited that the prosecution
was under the new wife beating
act and quoted from the act crea-
ting the Municipal Court with es-
| pecial reference 10 assaults and
batteries. "Ihe assaults and bat
teries of which the said Municipal
Court has jurisdiction are common
law offences and not statutory as
saults and batteries, punishable
by ignominious penalties usually
inflicted upon felons. 1t is neon.
ceivable tina, the Legislature or
constitutional convention has in-
tentloually conferred upon SAID
Municipal Court jurisdiction Of an
offence punishable by whipping or
other ignominous 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.
The said section 30 OF article 4,
OF the present constitution 10 refer
ence TO the jurisdiction Of tlnlerior
court provides, That there shall
be an appeal to the Court Of Gen
erai Sessions in all cases in which
the sentence shall be impris on mcnt
exceenlng one month, or fine ex-
ceeding 800.
This is clear indication ofthe pur-
pose Of the convention to limit pen
alties to be imposed by inferior court,
established or to be established to fine
or imprisonment or both. If this Is
not so, the Legislature might impose
the death penalty for any of the Of
tcnSes of which an inferior court has
or may have jurisdiction and the sen.
tence Of such court would be final.
This of course is incredible.
1t will he observed that the act of
February 22nd, 1901. the wife beat
ing act does not expressly confer upon
said Municipal Court jurisdiction of
the offence thereby created and it is
probable that such was rot the ntcn-
tion of the Legislature. act does not
appear to have been passed with the
concurrence Of two thirds Of al! the
members elected to each IoNl>c, as re-
qnired by section 80. article 1, OF the
constitution, to give jurisdiction to
inferior courts of her misdemranOlS
than those enumerated in said see
tiunS.
We are Of the opinion that the said
Mmficipal Court had no Jurisdiction
of HE offence of which the defendant
was convicted. The judgement be-
low is reversed.
After citing the defendants
reasons for asking Tor a new 'ial
the opinion sets out that the atiii a.
Wits produced bv the State makes
its manifest that there is no pre- u-
dice against John Lynn and there
fore the dlleg dtion Is not sustained.
The second reason for a change OF
venue, viz: the peclnlarv interest
OF the Judges and jurors who are
to try the case, it it be true, un-
question ably disqualties them and
the change OF venue should be
granted.
1t is a fundamental MAXIM Of our
law that 10 man shall Sit as Judge
in his own cause; while i. is equally
true that the humblest as well as
the most dcpraved are guarant eed
a lar trial by an impartial jury.
The opinion set out severa! au-
thorlties on charge of venue, and
under them 1t cannot appear that
the Judges and Jurors, as tax
payers OF New Castle county are
not interested in such substan-
tlal way as 10 disquaIfy them
Under the acs Of 1851 providing for
fines provision is made that all fines
or foriilures Shall belong TO the coun-
ty in which they are incurred, and un-
der this act ii seems that af the case
was moved to either of the lower
county's, the fine if rny would 60 to
that county and therefore under the
defendants allegation the court would
be interested, us residents Of that
county.
From all tina, appears in the case
we see no reason to prevent the de-
fcndant from having a fair trial. T. e
change of venue is refused.
Superior Court was opened by
George G. Smith, who assumed his
Official position as cricr for the first
this morning.
A jury was drawn to try the case
of Francis karczcwski VS.. Whining
ton City Railway Compuny. l..
Irving Handy and Herbert l.. Rice,
appeared for the plaintif and Walter
II. Hayes for the defendant company.
karczcwfki was injured from a
shock Of electricity, while engaged in
scrubbing out car ot the company's
barn, which has left him with an i'm
ntr,J hand