Opinion
04-22-1926
HALL v. STATE.
James H. Hughes, of Dover, for appellant. Earle D. Willey, Deputy Atty. Gen., for the State.
Samuel J. Hall was convicted of the reckless driving of an automobile, and he appeals. Motion of the state to quash appellant's plea of former jeopardy refused.
PENNEWILL, C. J., and HARRINGTON, J., sitting.
James H. Hughes, of Dover, for appellant.
Earle D. Willey, Deputy Atty. Gen., for the State.
Case heard on motion to quash a plea of former jeopardy filed by the defendant below.
Samuel J. Hall, the defendant below, was convicted before Wilbur D. Burton, a justice of the peace, at Dover, on the 29th day of March, A. D. 1926, for the reckless driving of an automobile, in violation of the provisions of section 209, chapter 6, Revised Code 1915, as amended, and was fined $25. Pursuant to the authority given by section 251 of chapter 6, Revised Code 1915, Hall, the defendant below, appealed from such conviction to this court, and filed a plea of former jeopardy.
This plea alleged that Hall had been arraigned on the same charge before the same justice on the fifteenth day of October, and had entered a plea of not guilty. It further alleged that said case was finally heard before the said justice on the fourth day of December, 1925, and that:
"After the evidence of the State was produced and heard, the Deputy Attorney General, representing the said State of Delaware, made application for the withdrawal of the charge and the said justice of the peace dismissed the said case and dismissed the defendant below, appellant."
It appeared from a copy of the record, which was attached to and made a part of this plea, that the justice had made the following entry with respect to the disposition of the charge against Hall before him:
"12/4/25. Trial—After the evidence of the State was produced and heard this charge was withdrawn on application of * * * the Attorney General and defendant dismissed."
Chapter 239, volume 34, Laws of Delaware, provides:
"Demurrers, pleas in abatement, and pleas to the jurisdiction are abolished. Objections heretofore raised by these pleadings shall be raised by motion to quash, supported in appropriate cases by affidavit."
Pursuant to this statute, the State moved to quash the plea of the defendant below, the appellant.
PENNEWILL, C. J., delivering the opinion of the Court:
The record of the justice, which is before us, speaks for itself, and must be presumed to correctly state the proceedings at the trial. We think it is the general rule of law in those states that have a constitutional provision respecting former jeopardy, similar to ours (article 1, section 8, "Constitution of 1897) that where a defendant is placed on trial under a valid indictment and a jury is drawn and sworn to try the case, he cannot be again tried for the same offense. 16 C. J. 236, 237, 248, 249; Commonwealth v. Hart, 149 Mass. 7, 20 N. E. 310; Com. v. Tuck, 20 Pick. (Mass.) 356, 365; McFadden v. Com., 23 Pa. 12, 62 Am. Dec. 308; Alexander v. Com., 105 Pa. 1; State v. Whipple, 57 Vt. 637. See, also, State v. Tindal, 5 Har. 488.
It is true that there are exceptions to this rule, for instance, where, for the promotion of justice, or for some other necessary reason, the jury is discharged before rendering a verdict. 16 C. J. 250, etc.; Com. v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; U. S. v. Perez, 9 Wheat. 579, 6 L. Ed. 165.
There is no case in this state that is inconsistent with the general rule above referred to. In the cases which have been called to our attention there was some invalidity in the indictment or, at least, the court was satisfied that by no possibility could there have been a legal conviction in the original prosecution. For that reason, it was held that the defendant had not been in jeopardy within the meaning of the law. State v. Whaley, 2 Har. 532; State v. Crutch, Houst. Cr. Cas. 204; State v. Dougherty, 6 Pennewill, 398, 70 A. 16; State v. Kimball,
7 Pennewill, 146, 77 A. 412.
It is true that those cases were before a jury, but we can see no difference in principle between such a proceeding and one before a justice of the peace.
The withdrawal of the charge before a justice would be the same in legal effect as the entry of a nolle prosequi in a jury trial. Com. v. Hart, 149 Mass. 7, 20 N. E. 310.
In almost all the cases that are apparently against the general rule, the indictment was invalid. This was so in the Vermont case cited by the State. State v. Champeau, 52 Vt. 313, 36 Am. Rep. 754. It was also the case in State v. Crutch, Houst. Cr. Cas. 204.
The motion of the state to quash the plea of the defendant is therefore refused.
Note. While the question was not discussed by the Court, State v. Brewer, 1 W. W. Harr. (31 Del.) 363, 114 A. 604, was apparently considered to be within the exceptions to the general rule referred to in the above opinion.
As to whether a defendant had been in jeopardy, where the original conviction before a justice of the peace was not regular and bona fide, see State v. Richardson, 7 Boyce, 6, 102 A. 82.