SYLLABUS-FACTS.

ALICE CORDELIA WAGNER vs. FREDERICK T. WAGNER.

Divorce-Petition; Amendment of-Offense; Description of-Extreme Cruelty-Pleading-Statute; Construction of.

1. The statute prescribes certain particular and specific offenses for which a divorce may be granted, and the petitioner is bound to set out in his petition the offense in the terms of the statute, "Cruel, barbarous and inhuman treatment" is not a sufficient description or statement of the statutory offense of "extreme cruelty."

2. An amendment will not be allowed of a petition for divorce, because an affidavit cannot be amended. The petitioner must proceed anew.

(September 28, 1901.)

LORE, C. J., and PENNEWILL and BOYCE, J. J., sitting.

Artemas Smith and Martin E. Smith for the petitioner.

Henry C., Conrad and Thomas C. Frame, Jr., for the respondent.

Superior Court, New Castle County, September Term, 1901.

PETITION FOR DIVORCE (No. 47, same term).

The petition alleged :

"That the said Frederick T. Wagner, in violation of his marriage vows, from the 20th day of March, A. D. 1898, to the present, hath been guilty of cruel, barbarous and inhuman treatment toward your petitioner; that to wit, on the 24th day of February, A. D. 1901, and at divers times thereafter, the said defendant hath assaulted, knocked down and beaten your petitioner without just cause; that to wit, on the A. D. 1901, within said time, the said Frederick T. Wagner made an affidavit before Lewis Sasse, a Justice of the Peace in and for Wilmington Hundred, New Castle County and State of Delaware, for a warrant

day of

ARGUMENTS-OPINION.

of arrest against your petitioner, under which said warrant your petitioner was arrested and taken before said Justice of the Peace, whereupon said warrant was dismissed, and at divers other times the said defendant, in conspiracy with others, has caused your petitioner to be arrested, fined and imprisoned; and at divers times within said time the said defendant has taunted your petitioner with having been in New Castle County jail, and otherwise abused and maltreated your petitioner; that though the said defendant has a separate room and sleeps in the same house with your petitioner, he hath within said time refused to cohabit with your petitioner and so continues to refuse; that the said defendant takes all of his meals away from home, and though he owns considerable property and is a mechanic making high wages, he, the said defendant, neglects and refuses to furnish sufficient food for your petitioner and her family of five persons, so that your petitioner is compelled to work for others to procure money to provide a bare sustenance for her said family; that the said defendant makes no provision for furnishing necessary clothing for his said family," etc..

H. C. Conrad :-I ask that the petition be dismissed because it does not follow the terms of the statute (Rev. Code, 595-6, Secs. 1 and 2); the language of the statute being "extreme cruelty," while the allegation in the petition is "cruel, barbarous and inhuman treatment."

M. E. Smith:-If the facts stated are sufficient to show a case of "extreme cruelty"-and I contend such a case is shown by the facts of this petition-it is sufficient. Instead of setting out mere conclusions of law, we have stated facts which establish those conclusions.

We have no authorities to present, but our contention is hornbook law.

LORE, C. J.:-The statute prescribes a particular and specific offense. We think the petitioner is bound to set that out in the

OPINION.

terms of the statute. We therefore order the petition dismissed on that ground.

M. E. Smith:-I ask for leave to amend.

LORE, C. J.:-How can you amend an affidavit? We have decided that you cannot amend. You will have to proceed anew.

HARRY WILSON, d. b. a., vs. THE STATE OF DELAWARE, p.

b. r.

Justice of the Peace-Appeal; Dismissal of-Security in Appeal; Sufficiency of-Statute.

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Where the security taken in an appeal from a judgment of a justice of the peace provided that “ any judgment rendered against A B shall be satisfied,' held to be not in compliance with the statute, which provides that the security must be for any judgment rendered against A B, his executors or administrators.

(October 28, 1901.)

JUDGES PENNEWILL and BOYCE sitting.

Richard P. Kenney and Arley B. Magee for defendant below, appellant.

Franklin Brockson for plaintiff below, respondent.

Superior Court, Kent County, October Term, 1901.

APPEAL from a judgment rendered by a Justice of the Peace

ARGUMENTS-OPINION.

(No. 4, April Term, 1900). Security in the appeal was taken in the following form:

"I, William F. Clements, become surety in the sum of one hundred dollars that the above case shall be prosecuted with effect and also any judgment rendered against said Harry Wilson shall be satisfied."

Brockson, for respondent, asked that the appeal be dismissed on the ground of insufficient security, in that it did not obligate the surety to pay any judgment that might be rendered against the administrators or executors of the said Harry Wilson, as required by the statute.

Rev. Code, 462, Sec, 5; Trimbel, Sides & Co., vs. Dugan, 2 Pennewill, 524.

PENNEWILL, J.:-The security taken in this case does not seem to be in compliance with the form prescribed by the statute. We think, under the circumstances, that the appeal should be

dismissed.

Appeal dismissed.

SYLLABUS.

STATE vs. LOUISA MAGNELL.

Criminal Law-Using Instrument to Procure Miscarriage-Statute - What the State must prove-Intent; Evidence of.

1. Procuring a miscarriage, within the meaning and purpose of the act, is the unlawful destruction, or the bringing or causing to be brought forth prematurely of the foetus or unborn off-spring of a pregnant woman, at any time before birth according to the course of nature.

2. In order to warrant a verdict of guilty the State must prove-(1) That the prisoner used an instrument as alleged in the indictment. (2) That he used it with the intent to procure the miscarriage of a person who was at the time pregnant or supposed by the prisoner to be pregnant. (3) That the miscarriage was not necessary to preserve the life of the woman upon whom the instrument was used.

3. The date of the alleged offense stated in the indictment is not material, and the crime may be shown to have been committed at any time prior to the finding of the indictment.

4. It is not necessary for the State to prove that the prisoner actually caused or accomplished the alleged miscarriage. It will be sufficient to prove that he used the alleged instrument with the intent to procure the miscarriage; and it is immaterial that the woman herself actually caused the miscarriage, or that it was by her consent or entreaty that the prisoner attempted to procure it.

5. The intent may be shown by the confession or declaration of the accused, or by his acts, conduct, etc., from which the intent may be reasonably inferred.

(November 30, 1901.)

LORE, C. J. and SPRUANCE and GRUBB, J. J., sitting.

Herbert H. Ward, Attorney-General and Robert H. Richards, Deputy Attorney-General, for the State.

J. Frank Ball and John F. Lynn for the defendant.

Court of General Sessions, New Castle County, November Term, 1901.

INDICTMENT FOR USING INSTRUMENT TO PROCURE A MIS

CARRIAGE.