Prosecution of father who was charged with failure to support his illegitimate child. On father's motion to dismiss the information, the Superior Court, in and for New Castle County, Richards, P. J., held that failure of parent to support a minor legitimate or illegitimate child is a continuing offense and father was subject to prosecution at any time during continuance of his
wilful neglect to support his illegitimate child, even though the prosecution was not commenced until three and one half years after birth of the child.
In prosecution of father, who was charged with failure to support his illegitimate child, it was incumbent upon state to prove beyond a reasonable doubt that child was in necessitous circumstances at time of commission of act. 13 Del.C. § 502.
[49 Del. 282] Motion on behalf of the defendant to dismiss the information on the grounds that it is not based upon the proper statute and that the prosecution is barred by the statute of limitations.
The information charges that the defendant ‘ on the 24th day of February 1954 in the County of New Castle did unlawfully, without lawful excuse, wilfully neglect to provide for the support and maintenance of his one minor illegitimate child, under the age of sixteen years, to wit: James Coxe, born August 30, 1950, in necessitous circumstances contary to Title 13, Section 502 of the Delaware Code of 1953’ .Title 13, Section 502 of the Code of 1953 provides: ‘ Any husband who, without just cause, deserts or wilfully neglects or refuses to provide for the support and maintenance of his wife in destitute or necessitous circumstances, or any parent who, without lawful excuse, deserts or wilfully neglects his or her legitimate or illegitimate child, so that such child shall become a neglected child as defined in section 901 of Title 10, or refuses to provide for the support and maintenance of his or her legitimate or illegitimate child or children, under the age of eighteen years, in destitute or necessitous circumstances, shall be fined
not more than $500, or imprisoned at hard labor in such prison of this
State as determined by the court, for not more than one year, or both. The
parent of any illegitimate child or children, under the age of eighteen
years shall provide for the support and maintenance of such illegitimate
child or children.
Donald W. Booker, Wilmington, attorney for the defendant in support of the motion
Stephen E. Hamilton, Jr., Deputy Atty. Gen., for the State.
RICHARDS, President Judge.
The defendant contends that there are two Sections of Title 13 of the Code of 1953 which provide for the support of illegitimate [49 Del. 283] children, namely Section 502 upon which the information is based and Section 1321; that Section 502 is intended to be applied where the issue of paternity is not involved, it having been admitted or support of the illegitimate child having been undertaken; that the issue in this case is the paternity of the illegitimate child and to obtain support for it when the paternity is proven which the Legislature intended to provide for in Section 1321.
Paternity is always an issue in a case of nonsupport of an illegitimate child. Sections 502 and 1321 both provide for the support of illegitimate children. There is no express language in either of these Sections indicating the type of cases to which they were intended to apply. Proceedings under Section 1321 are often referred to as bastardy proceedings but there is nothing in the statute to indicate that it is limited to proceedings of that nature. Likewise, there is no express language in Section 502 which indicates that it applies exclusively to certain types of cases. The first part of this section refers to ‘ any husband who, without just cause, deserts or wilfully neglects or refuses to provide for the support and maintenance of his wife in destitute or necessitous circumstance, or any parent who, without lawful excuse, deserts or wilfully neglects his or her legitimate or illegitimate child’, but this is followed by language which clearly indicates that it applies to any parent who fails to provide for the support and maintenance of his or her legitimate or illegitimate child or children. In the case of Richardson v. State, 7 Boyce 534, 109 A. 124, the defendant was charged in the information with wilfully neglecting to provide for the support and maintenance of his illegitimate child. The information was based upon Sec. 3034 of the Code of 1915 the language of which is similar to the language of Title 13, Section 502 of the Code of 1953 upon which the information in this case is based. There was no contention that the Section did not apply to that case.
I am convinced that Title 13, Section 502 of the Code of 1953, is sufficiently broad to cover the charge made in this indictment.
[49 Del. 284] The prosecution in this case having been commenced 3 1/2 years after the birth of the child, the defendant contends that it is barred by the statute of limitations because it was not instituted within two years next after the commission of the offense. There is no doubt that the statute of limitations being Title 11, Section 2902 of the Code of 1953 provides that no person shall be prosecuted, tried or punished, for any non-capital offense unless the indictment is found or the information instituted within two years next after the offense is committed. The defendant in this case, however, is charged with nonsupport which the law recognizes as a continuing crime. In crimes of this nature, the statute does not begin to run from the occurrence of the initial act, which may in itself embody all the elements of the crime, but from the occurrence of the most recent act. The duty to support the child is a continuing duty and the ...