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State v. Holden - 429 A.2d 1321 (Del. Super. Ct. 1981)


Del. Code Ann. tit. 13, § 101 provides: Void and Voidable Marriages. (a) A marriage is prohibited and void between: (1) A person and his or her ancestor, descendant, brother, sister, uncle, aunt, niece, nephew, or first cousin.


Sharon and Dennis H., appellees, were half-brother and half-sister by blood, born of the same mother, but of different fathers. Sharon, when approximately 10 days old, was adopted by the W. family, by whom she was raised. Dennis became a ward of the State, and was raised in or by various State programs. After reaching maturity, Sharon discovered that she had a half-brother, Dennis. After locating him in the Smyrna Correctional institution, Sharon assisted Dennis in obtaining parole. They were married on July 11, 1979. Ten weeks later, appellees were arrested and jailed for violations of 13 Del.C. § 102 and 11 Del.C. § 1221. In Municipal Court, appellees had argued that even if they were half-brother and half-sister by blood, the provision of 13 Del.C. § 102 prohibiting marriages between brothers and sisters was inapplicable to the appellees' situation because under 13 Del.C. § 919, Sharon's adoption eliminated any familial tie between Sharon and Dennis as a matter of law. Appellees had also argued that the provisions of Chapter 9 of Title 13 prohibiting examination of the adoption records prohibited any inquiry into the matter of Sharon's adoption, which would be necessary for the State to prove its allegations. The Municipal Court dismissed the information charging Sharon and Dennis with a violation of 13 Del.C. § 102, stating that “the State cannot examine into relationships which as a matter of public policy and law are put at rest with adoption." Since the perjury count was based on the denial under oath that Sharon and Dennis were related by blood, the court held that inquiry would require the same type of prohibited inquiry, and so dismissed all charges. The State appealed the dismissal, contending that the provisions of Chapter 9 of Title 13 of the Delaware Code have no bearing in a prosecution brought pursuant to 13 Del.C. §§ 101(a)(1) and 102.


Was it proper for the Municipal Court to dismiss the charges against Sharon and Dennis on the ground that the State cannot examine into relationships that were put at rest with adoption?




On appeal, the court held that Rule 48(b) required a showing of some type of prejudice to justify the exercise of the court's discretion to dismiss. Appellees had not demonstrated the appropriate type of prejudice and could not argue that the state's timely filing of the appeal constituted unnecessary delay. Because the municipal court had not begun to hear evidence when it decided to dismiss, jeopardy had not attached, and the state had a right to appeal under Del. Code Ann. tit. 10, § 9902. The state did not require the court's leave to appeal. The court held that the policy behind the prohibition by Del. Code Ann. tit. 13, § 101(a)(1) of a marriage between a brother and a sister required the court to include relatives of half-blood in the prohibition.

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