Opinion
10-30-1899
STATE v. MOORH.
Robert C. White, Atty. Gen., and Peter L. Cooper, Jr., Dep. Atty. Gen., for the State. Walter H. Hayes and Herbert H. Ward, for defendant
Information against Thomas C. Moore for violating the provisions of section 7 of article 5 of the constitution, by influencing certain persons to register as qualified voters.
Argued before LORE, C. J?and PENNEWILL and BOYCE, JJ.
Robert C. White, Atty. Gen., and Peter L. Cooper, Jr., Dep. Atty. Gen., for the State. Walter H. Hayes and Herbert H. Ward, for defendant
The information filed by the attorney general was demurred to on several grounds. The attorney general thereupon asked leave to file the following amendments to the information: "And now, to wit, this 30th day of October, A. D. 1899, comes Robert C. White, attorney general of the state of Delaware, and prays leave of the court to file the following amendment, to wit: By adding to the first paragraph of the first count in said information the following words and names, to wit: 'Elijah M. Gregory, John Seeney, and John Wilmer,'—and by adding to the second and third counts in said information, and before the commencement of said counts, the words following, to wit: 'And the said Robert C. White, attorney general as aforesaid, now here in the court of general sessions of the said state, now sitting in the county aforesaid, further information makes that the said Thomas C. Moore, late of Duck Creek hundred, in the county and state aforesaid, was on the 18th day of April, A. D. 1899, held in bail by Ezekiel V. Cooper, Esq., a justice of the peace of the said state, in and for the county aforesaid, in the sum of one thousand dollars, for the appearance of the said Thomas C. Moore, at the next term of the court of general, sessions in and for said county, to answer the charge of using money to influence certain persons to register as qualified voters in representative district No. 1 in Kent county aforesaid, to wit, Elijah M. Gregory, John Seeney, and John Wilmer.'"
Mr. White. The effect of this amendment is simply the addition of the names "Elijah M. Gregory, John Seeney, and John Wilmer." The information charges the defendant, in the first paragraph, with influencing certain persons, without naming those persons.
LORE, C. J.They are not set out in the information.
Mr. White. We do name them in the counts, but not in the first paragraph of the information. In each count we do state that these certain persons were influenced, naming them.
Mr. Hayes. This is a case of first impression in this state, as to amending this information. In the case of State v. Collins, 1 Pennewill (Del.) 420, 42 Atl. 619, there was no question raised as to the proceedings. The only difference between an information and an indictment is that one is found by a grand jury, and the other is presented by the attorney general. We object to any amendment being made to the existing information. As to filing a new information, —that is something else. We are not discussing that question at this time, and, if an amendment is allowed, we think it should be allowed on certain terms.
Mr. Cooper. This information is filed under the provisions of section 8 of article 5 of the amended constitution; section 7 of article 5, enumerating a number of offenses for the violation of the election laws; and section 8 of article 5, providing the mode in which persons charged with the commission of the offenses enumerated in section 7 shall be tried. Count No. 2 sets out the offense, without reciting, as it does in count No. 1, that the defendant had been held to bail by a judge or a justice of the peace. The amendment which is offered in no manner changes the substance of the indictment it only alleges certain matter which gives the court jurisdiction, in the subsequent counts of the information. I take it that, unless the defendant had been held to bail by a judge or a justice of the peace, the attorney general would not have the power to file the information, and it would be beyond the jurisdiction of the court to try it until he was so held. So that the effect of the amendment goes to the jurisdiction of the court to show that the defendant has been held to bail by a judge or a justice of the peace, which was set out in the first count, but not set out in the subsequent counts. It is true that an indictment ordinarily cannot be amended as to a matter of substance, because an indictment is a finding of a grand jury. It is the finding of the peers of the accused, and it is their finding upon which he is tried. The grand jury is discharged, and, if their work is imperfect of course it cannot be corrected either by the court or by the attorney general. But an information is filed by the officer representing the government, or, as some of the old cases say, "filed by the king,"—the government being the party on the one side, and the defendant on the other; and the government (as in this case, the attorney general) may amend its pleadings at any time, as a matter of right, and not a matter of discretion of the court. I find in the states of Kentucky, Vermont, Connecticut, Colorado, and Michigan there are informations for certain offenses,—I think, all being misdemeanors, as this is. Those states have now laid down a uniform line of procedure, and I could not find any case where any of these states using informations had refused to permit an amendment. I do find, however, where some of the states that permit a prosecution for a crime by information allow amendments. State v. White (Vt.) 24 Atl. 250; Rex v. Wilkes, 4 Burrows, 2568. I have been unable to find any case in which an amendment to an information at common law has not been allowed.
LORE, C. J. Are we to understand, Mr. Hayes and Mr. Ward, that your position is that an amendment could not be granted, or that, if granted, it must be upon terms?
Mr. Ward. We take both positions.
Mr. Cooper. Now, upon the matter of terms: This is the information of the government, not an information in a civil proceeding, in which the court ought to impose terms. As was said by Justice Mansfield in the case which I cited, the attorney general pays no costs, and therefore there can be no imposing of terms, so far as costs are concerned.
Mr. Ward. First The court understand that, so far as the common law and the practice of this state are concerned, the matter of an amendment by substance could not be considered, because under the practice an amendment in criminal pleading has never been allowed in this state, except in matters of form, and not of substance. Second. We have a provision in our constitution (the one under which these informations are filed) which infringes most strongly upon the common-law rights of a defendant. In this provision of the constitution is laid down a certain method and process for prosecuting certain crimes, and what the constitution expresses is the chart for this court. Anything not expressed cannot be a guide to this court. I would say generally about the authorities cited by the learned counsel on the other side that, so far as shown in any of the cases cited, where the amendment was allowed it was as to matters of form, and not of substance.
Mr. Cooper. Lord Mansfield said they could add whole counts.
Mr. Ward. Lord Mansfield said if the amendment had not been allowed the defendant would have been acquitted. We all know that, under the extreme application of technical rules in criminal as well as civil proceedings in those old days, it took a very little thing in the record, even where it was a matter of form, to acquit a person. Some of the amendments referred to by Justice Mansfield were like this: He allowed an amendment in an information from the words "tenor, etc.," to the words "purport, etc.," which must be, it seems to me, purely and simply a matter of form, and not of substance. The learned counsel on the other side cites but one American authority, and that was a case where an amendment was permitted in the averment of time, to bring it within the statute of limitations. In that case there is nothing to show that the amendment that was allowed was a material amendment. In one breath the prosecuting officer says this is not a material amendment, and before he completes his period he says that without it he has not shown the jurisdiction of this court Judge Rowell, in the Vermont case, argues, from that provision of the statute law of Vermont permitting amendments in indictments, and not referring to informations, that he could not exclude the common law in amending informations. I contend that that averment is not applicable to this. There was a reference by that judge to that provision in criminal prosecutions only, and it was in a statute. Here there is a reference to a provision in the constitution giving certain powers to amend, and I contend that, by clear and plain arguments, the power to amend in one, by giving power to amend in the other, is excluded. Our constitution is based upon our own institutions. It is based upon what we have considered in the past to be proper. If the makers of this constitution have, in their own minds, decided that there should be permitted amendments in criminal pleadings, the constitution should have so stated. It expressly says that amendments may be made in civil actions, and gives no power to amend in criminal actions. Because the makers of our constitution chose to give the power to amend in civil proceedings, and limited it to that, then we have a clear conclusion necessarily drawn from that fact that the makers of this constitution determined that amendments in criminal proceedings ought not to be allowed, and they did not authorize it. It is the application of the old rule, that the expression of the one excludes the other. Section 28, p. 981, Rev. Code, which is a general provision concerning crimes and punishments, provides: "In a criminal case, judgment shall not be arrested, nor reversed, for any clerical misprision, or, formal defect, if the record contain substantial ground for judgment The omission of the words 'with force and arms' shall be deemed a defect in form merely." Although that is not directly or expressly to the power to amend, it is, however, a clear indication as to the extent that our statute recognizes the power to amend in a criminal case. That is to say, it might amend in case of a clerical misprision or formal defect; and we contend that that must be the whole, complete, and clear extent of the power to amend in a criminal case, given in this state. Our constitution gives a limited jurisdiction to this court, to try this class of cases by a certain method; and unless the court is given authority to allow this amendment, somewhere in the constitution, or upon the practice in this state on which the constitution is based, then the court ought to refuse this amendment. So far as the power of amendment generally is concerned, there is no use to bring a lot of cases here, because you will find many varying rules in the different states. I wish to cite, however, 1 Bish. Cr. Proc. (Ed. 1895) § 714, p. 127. We contend that it is an interference with the due order of judicial proceedings to amend this paper under these circumstances, at this time, because the defendant has been arrested, the information has been filed, and the information discloses that this court has no jurisdiction of this case; and we contend that it not only interferes with the due order of judicial proceedings, but that it also interferes with the right of this defendant to be prosecuted according to law under the constitution of this state.
Mr. White. This is not a matter of such substantiality as that it affects the rights of the defendants in these cases. It does not affect the case, neither does it affect the right The defendant, Thomas C. Moore, is informed in the remaining portion of this information of the nature and character of the charge against him. The name of each person is stated in each of the counts. This amendment is simply to insert those names, in the first instance, in what I would call the "preamble to the information." The su preme court, in their rules, have prescribed the form for a bail bond to be taken by a justice of the peace, and in a note say: "The above form may be used by justices of the peace by making necessary changes." The form of bail bond is as follows: "—— County—ss.: The State of Delaware. Be it remembered, that ——, of ——county, in the state of Delaware aforesaid, personally appeared before me, ——, one of the judges of the state of Delaware, and acknowledged to owe to the state of Delaware the sum of ——dollars, to be levied on their goods and chattels, lands and tenements, respectively, for the use of said state. Upon the condition that if the above-bound ——be and appear before the next court of general sessions to be held at ———, for the county aforesaid, there to answer such matters and things as shall be objected against him, and particularly touching a charge of violating the provisions of section 7 of article 5 of the constitution of this state, said to have been committed by the said——in—— county on or about the —— day of ——, A. D. ——, and shall not depart the court without leave thereof, then this obligation to be void, otherwise to be in full force and virtue," etc. That is the form of the bond that the court have suggested and prescribed. When that bond is sent to us,—to the attorney general of the state,—what other information has he, than that bond, that the defendant was held to bail for violation of section 7, art. 5, of the constitution? We would base our argument on that. When the members of the constitutional convention prescribed this mode of prosecution by information, they, of course, meant the common-law information, as contradistinguished from an indictment, and they meant to, and did, use the word "information," with all of its common-law characteristics and powers, and there can be no other idea than that of the common-law information. They had no reference whatever to indictment at common law, but took it with all the characteristics, as I say, and habiliments, of an information at common law, and the common-law process. Section 28, p. 981, Rev. Code, relates entirely to indictments—must refer exclusively to indictments.
LORE, C. J. We understand, Mr. Attorney General, that your application is to add to the first clause of your first information, at the end thereof, these names: "Elijah M. Gregory, John Seeney, and John Wilmer."
Mr. White. Yes, sir; stating that they were the parties influenced.
LORE, C. J. That was your application in the first instance, and the other was to add to the second and third counts a new paragraph. Do you mean that as a substitute for the first paragraph of these counts?
Mr. White. No, sir.
LORE, C. J. (referring to proposed amendments). "And the said Robert C. White, attorney general as aforesaid, now here in the court of general sessions of the said state now sitting in the county aforesaid, further information makes," etc. Is this to be in lieu of that?
Mr. White. No, sir; that is to give the court jurisdiction.
LORE, C. J. You keep this in, and add the other, too?
Mr. White. Yes; this allegation that he was held to bail; and we state the fact that he committed the offense. We think they are both absolutely necessary.
Decision on Motion to Amend.
LORE, C. J. The court have considered the arguments made by the respective counsel, and have examined the authorities so far as it was possible in the limited time we had at our disposal, and have reached the conclusion that these amendments ought to be allowed, and we therefore so order.
The defendant excepted.
LORE, C. J. The case has come before us in a rather fragmentary way, and we allow the separate amendments, but insist that a new information be filed, embodying the amendments. We have the ease of Thomas
C. Moore before us now.
Upon application of the attorney general, the court then allowed the following amended information to be filed, and defendant excepted: "Robert C. White, attorney general of the state of Delaware, now here in the court of general sessions of the said state now sitting in and for the county aforesaid, information makes that Thomas C Moore, late of Duck Creek hundred, county and state aforesaid, was on the 18th day of April, A.
D. 1899, held to bail by Ezekiel V. Cooper, Esq., a justice of the peace for said state, in and for the county aforesaid, in the sum of one thousand dollars, for the appearance of Thomas C. Moore at the present session of the said court of general sessions, being now here holden in and for said county, to answer to the charge of using money to influence certain persons, to wit, Elijah M. Gregory, John Seeney, and John Wilmer, to register as qualified voters in representative district No. 1, Kent county, and state of Delaware. And the said Robert C. White, attorney general as aforesaid, further information makes that the said Thomas C. Moore, late of the hundred, county, and state aforesaid, on the 15th day of October in the year of our Lord 1898, with force and arms, at the hundred aforesaid, in the county aforesaid, did unlawfully, by the use of money, to wit, the sum of one dollar, lawful money of the United States of America, influence one Elijah M. Gregory, who was then and there a resident and citizen of the said state of Delaware, and possessing all the qualifications to register in the First representative district of the county aforesaid, as an elector at the general election to be held on the Tuesday next after the first Monday in the month of November in the year of our Lord 1898,' as provided by section 1 of article 5 of the constitution of the state of Delaware, by then and there giving to him, the said Elijah M. Gregory, the sum of one dollar as aforesaid, to pay the registration fee of him, the said Elijah M. Gregory, in order to enable him, the said Elijah M. Gregory, then and there to register and qualify as an elector in the district aforesaid in the county aforesaid, and did then and there, by giving unto him, the said Elijah M. Gregory, the said sum of one dollar as aforesaid, influence him, the said Elijah M. Gregory, to become registered as a qualified voter in the district aforesaid in the county aforesaid, and for the election to be held as aforesaid, contrary to the provisions of the constitution of the state of Delaware in such case made and provided, and against the peace and dignity of the state." The remaining two counts in the information were similar to the first, except in name of person influenced.
(Nov. 3, 1899.)
LORE, C. J. Defendant's causes of demurrer Nos. 1, 2, 3, and 4 are to the effect that it does not appear in and by the information that the holding to bail and other initial proceedings in this case were had by or before a judge entitled to sit in the supreme court in this state. Under these causes it was insisted that this court of general sessions was designated as the tribunal to try offenses under section 7, art. 5, of the constitution, only when such cases were incepted before such a judge; that the constitution has designated no trial court where cases were commenced before a justice of the peace. Section 8, art. 5, of the constitution says every such prosecution "shall be upon information filed by the attorney general, after examination and commitment, or holding to bail, by a judge or justice of the peace, and the cause shall be heard, tried and determined by the court without the intervention of either a grand or petit jury." "The" court, not "a" court (that is, one common court, whether the case is incepted before a judge or a justice of the peace), is the plain language of the constitution. That common court is specifically designated further on in said section 8, where it authorizes the judge, acting in any such preliminary hearing of an accused person, to bind him, with "sufficient surety, or for want of bail, to commit him for his appearance and answer, at the next term of the court of general sessions." Again, said section 8 gives to the accused the right of appeal, within three months after sentence, to the supreme court, whether the case commenced before a judge or a justice of the peace. Clause 3, § 12, art. 4, of the constitution clothes the supreme court expressly with the power "to receive appeals from the court of general sessions in cases of prosecution under section 8, article 5, of this constitution, and to determine finally all matters of appeal in such cases." These two clauses of the constitutlon clearly indicate the court of general sessions as the trial court in all such cases, whether the first steps were had before a judge or a justice of the peace. We therefore overrule causes of demurrer Nos. 1, 2, 3, and 4.
Causes of demurrer Nos. 5, 6, and 7 are to the effect that it does not appear in and by the information that the defendant was ever examined and committed or held to bail by a justice of the peace to answer the offenses alleged in the first, second, and third counts, respectively, of said information. Causes of demurrer 8, 9, and 10 are to the same effect, with this qualification: That such proceedings do not appear to have been had before a certain justice of the peace, viz. one Ezekiel V. Cooper. Under these six causes it was argued that: "An examination and commitment or holding to bail of the defendant to appear and answer the offense informed against is a jurisdictional prerequisite to the filing of the information, and it must appear to the court, by the information, that there has been such examination and commitment or holding to bail. It is necessary not only to give jurisdiction of the person, but also of the offense alleged in the information, and such preliminary steps must be proved at the trial, and cannot be so proved unless alleged in the indictment." This point is perhaps the gravest and most difficult of all the questions raised by this demurrer. Counsel both on the part of the state and the defendant have argued it at great length, with much learning, and have cited many authorities. There appear to be two lines of cases,—one holding that such preliminary steps are jurisdictional prerequisites, and as such must be averred in the information; the other holding that while they are necessary steps in the proceeding, without which no conviction can be had, yet they need not be set out in the information, but avail for the defense of the accused when properly pleaded. The leading case in the first-named line is McCarty v. State, 16 Ind. 310, decided in 1861, where it was held that the court of common pleas has no jurisdiction to hear and determine any case of felony unless the accused party is in custody, or, being on bail, has consented to the jurisdiction, and the information must show on its face that such a state of facts exists. This ruling has been followed in Justice v. State, 17 Ind. 56; Kreigh v. State, 17 Ind. 495; Broadhurst v. State, 21 Ind. 333; Walker v. State, 23 Ind. 61; Cobb v. State, 27 Ind. 133; Davis v. State, 69 Ind. 130; and Iter v. State, 74 Ind. 188; also, in State v. Hilton, 32 N. H. 285. In these Indiana cases, it may be said, there was concurrent jurisdiction in criminal cases in the court of common pleas and in the circuit court. The common pleas had cognizance of certain specific cases only when the statutory conditions existed, and not general jurisdiction of all that class of cases. In the leading case (17 Ind. 56) the court said, "The jurisdiction of the common pleas is evidently limited." Somewhat similar conditions also obtain in New Hampshire. The leading case in the second named line is that of Washburn v. People, 10 Mich. 372, decided in 1802, where it was held that: "It is not necessary that an information should show on its face that a preliminary examination has been had or been waived in cases where the defendant is not a fugitive from justice. If the defendant intends to insist upon the want of such examination, he should take the objection by plea in abatement, setting up the fact that it has not been had, or by motion to quash, based on a proper showing by affidavit." This ruling has been followed in People v. Coffman, 59 Mich. 1, 26 N. W. 207. Cases bearing more or less directly upon this point were cited by the attorney general, in the states of Kansas, Nebraska, Ohio, Washington, Wisconsin, Virginia, Colorado, and New Hampshire (State v. Thompson, 20 N. H. 250). The provisions of the laws of the respective states following these two lines are in no case the same as our own; the law of Michigan, perhaps, being most nearly in accord with our law. While they serve to throw light upon the questions at issue, in illustration of the principles involved, we think it neither necessary nor profitable to comment upon them in detail. We must necessarily turn to the language and provisions of our own constitution, in order to solve this question. Under its terms every prosecution for any of the offenses named in said section 7, art. 5, are to be had in the court of general sessions, upon information filed by the attorney general after examination and commitment or holding to bail by a judge or justice of the peace, and the cause shall be heard, tried, and determined by the court without the intervention of either a grand jury or a petit jury. The court designated is one of general criminal jurisdiction, to which such cases would properly go under the constitutional distribution of judicial power among the several courts of the state. The constitution gives to this court the general and exclusive jurisdiction of every offense arising under section 7, art 5, without condition or limitation other than by prescribing the mode in which such prosecution shall be conducted. The first step in such mode is by a commitment or holding to bail by a judge or justice of the peace. This is not an unusual proceeding. In the second step the state complains on information filed by the attorney general, which is a common-law remedy. The third step is that the trial shall be by the court, without grand or petit jury, which certainly is not a qualification of the general jurisdiction, whatever may be said as to the policy or wisdom of such a method. These provisions apply, not to exceptional cases, under exceptional conditions, but to all cases that can possibly arise under said section 7, art. 5. These steps therefore seem to be distinct, and somewhat independent of each other. Each one is necessary in the orderly progress of the prosecution, and all must conjoin before conviction of the accused may be had. But why should it be necessary to aver in the information the commitment and holding to bail, which is no part of the offense charged, when the mere fact that the offense is within said section 7 of article 5 excludes any and every other jurisdiction, and any and all other cases and conditions? It may be that the convention deemed it wise to curb the discretion of the attorney general by subordinating his act of filing the information to a preliminary hearing before a judge or justice of the peace, with which hearing he may or may not have had anything to do, and that he might only proceed against any citizen in such election cases after such preliminary hearing. Such commitment or holding to bail is and can be no necessary part of the offense charged in the information, and is therefore extraneous to the information, unless the peculiar conditions surrounding the case make it so necessarily jurisdictional as to force it into the information, to show the court its right to proceed in the case. Surely in' this case no such peculiar and exceptional conditions exist, under the plain, exclusive, and sweeping terms of the constitution conferring this jurisdiction. It cannot be necessary for the information of the court, and, so far as it is a shield for the defendant, he may always avail himself, by proper plea, of the failure to proceed by such commitment or holding to ball. It is not, like the Indiana case, embarrassed by concurrent jurisdiction of two courts of general jurisdiction of criminal cases, but where the court of common pleas took jurisdiction in certain exceptional cases of a general class, which were surrounded by special conditions, and in which different modes of proceeding were resorted to under certain circumstances. There it would seem only reasonable to insist that the specific conditions should appear upon the face of the information. It is not like the New Hampshire case, where the jurisdiction of the higher court was only of assaults of an aggravated nature; the general jurisdiction of assaults being vested in justices of the peace. Entertaining this view of the case, in our judgment these causes of demurrer should be overruled.
Cause of demurrer No. 11: "For that it appears in and by said amended information that there are three separate and distinct counts, each of which said counts purports to allege a separate and distinct offense." It is contended on the part of the state that, even though the offenses are separate and distinct, they may be joined in the same information when such offenses are misdemeanors,—as, for example, assaults on separate persons. This contention is based upon 1 Chit. Cr. Law, 254, and 1 Bish. Cr. Proc, where it is held that "it is the constant practice to receive evidence of several libels and assaults, upon the same indictment," because in criminal proceedings no compensation is given to the prosecutor, and public security is the object to be obtained. This doctrine is based upon the leading case of Rex v. Benfield, 2 Burrows, 983, which was a conviction of several persons for publicly singing, with loud voices, in the street before Cooke's dwelling, libelous, defamatory, and lewd songs. The court sustained the Joinder because "they looked upon this to be one offense. The gist of the charge is singing these songs in the manner and with the intent charged in the information, and singing them at the father's door, with intent to discredit him and his children." This case criticises and overrules Rex. v. Clendon, 2 Ld. Raym. 1572, which decides that a man could not be prosecuted upon one indictment for assault on two persons, although the assault was one act These leading cases seem to confine joinder to such offenses as grow out of one act or transaction,—such as are congruous or a series of related wrongs,— in which the same evidence is applicable to all counts. They do not justify the broad and unqualified doctrine of the text-books. When, therefore, separate and distinct offenses are charged in one indictment, the state may be called upon to elect which of the offenses shall be prosecuted. We hold, therefore, that these three distinct offenses should not be joined in this information, and that the state may be called upon to elect which one of the three it will prosecute.
The twelfth cause of demurrer is: "For that it appears in and by said amended information that the prosecution of the crimes therein alleged is by information, and is not by presentment or indictment found by a grand jury drawn, summoned, and qualified according to the law of the state of Delaware." The point of this cause of demurrer is that the prosecution being by information, and the trial by the court without the intervention of a jury, is it not due process of law, under the fourteenth amendment to the constitution of the United States. The recent case of Holden v. Hardy, 169 U. S. 366. 18 Sup. Ct 383, 42 L. Ed. 780, quite fully states the law on this subject. The opinion of the court was delivered by Justice Brown, Judges Brewer and Peckham only dissenting. The opinion carefully reviews all the preceding decisions of the court, and from it we gather the following compact statement of the law: In Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678, "it was held that a trial by Jury was not a privilege or immunity of citizenship which the states are forbidden to abridge, but the requirement of due process of law was met if the trial was had according to the settled course of judicial proceedings." "Due process of law," says Chief Justice Waite in that case, "is process due according to the law of the land. This process, in the states, is regulated by the law of the state." Similar rulings with regard to the necessity of a Jury or of a Judicial trial in special proceedings were made in Kennard v. Louisiana, 92 U. S. 480, 23 L. Ed. 478; McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335; Davidson v. City of New Orleans, 96 U. S. 97, 24 L. Ed. 616; Waltson v. Nevin, 128 U. S. 578, 9 Sup. Ct 192, 32 L. Ed. 544; and Ex parte Wall, 107 U. S. 265, 2 Sup. Ct 569, 27 L. Ed. 552. In Hurtado v. People, 110 U. S. 516, 4 Sup. Ct. 1ll, 292, 28 L. Ed. 232, where the proceeding was by information, "it was held that due process of law did not necessarily require an indictment by a grand jury in a prosecution by a state for murder." The very learned and able dissenting opinion of Justice Harlan in this case is a credit to his great learning and ability as a judge and a lawyer, but may not avail where we are seeking what the courts have decided, and not what some one member of the court may have said. Our inquiry is not what any one Judge may have declared, however wisely, but what is the law as determined by the opinion of the courts? So far as the supreme court of the United States has passed upon the point raised in this cause of demurrer, it has been against the defendant's contention. The judgments of this court, in construing the federal constitution, are those of the court of last resort in such cases, and are necessarily final until it sees fit to declare otherwise. We therefore overrule this cause of demurrer.
Defendant's attorneys thereupon filed the following plea in abatement:
"And now, to wit this third day of November, A. D. 1899, the said Thomas C. Moore, by Walter H. Hayes and Herbert H. Ward, his attorneys, comes into court here, and says that he, the said defendant, never was held to bail by Ezekiel V. Cooper, Esquire, a justice of the peace of the said state of Delaware, in and for Kent county, to appear at the April term, A. D. 1899, of said court of general sessions, and answer any of the several offenses charged against him in said information, as is supposed and alleged in said information, and this he is ready to verify, wherefore he prays judgment of the said information, and that the same may be quashed. Thos. V. Moore.
"And now, to wit, this third day of November, A. D. 1899, the said Thomas C. Moore, the defendant in the above-stated case, maketh oath and saith that the plea hereto prefixed is true in substance and in fact. Thos. C. Moore."
(Sworn and subscribed to, etc.)
Replications were filed by the attorney general to the above plea, and similiter by defendant.
On November 7th the case came on for trial before the court, and Ezekiel V. Cooper, the justice of the peace before whom the defendant was held to bail, was placed upon the stand, and proved the execution of the ball bond, which was in the following form:
"Kent County—ss.: The State of Delaware. Be it remembered that Dr. Thomas C Moore, of Duck Creek hundred, and William A. Faries of Duck Creek hundred, in said county, personally appeared before E. V. Cooper, a justice of the peace for said county, and acknowledged to owe to the state of Delaware the sum of one thousand ($1,000.00) dollars, to be levied on their goods and chattels, lands and tenements, respectively, for the use of said state, upon the condition that if the above-bound Thomas C. Moore be and appear before the next court of general sessions to be held at Dover, for the county aforesaid, there to answer such matters and things as shall be objected against him, and particularly touching a charge of the using of money by him to influence certain persons to register as qualified voters in representative district number one in Kent county, Delaware, said to have been committed by the said Dr. Thomas C. Moore at Duck Creek hundred, in said county, on the first day of August, and shall not depart the court without leave thereof, then this recognizance to be void, otherwise to be in full force and virtue. Thos. C. Moore. [Seal.] W. A. Faries. [Seal.]
"Taken, signed, and acknowledged before E. V. Cooper, a justice of the peace for said county, the eighteenth day of April, A. D. 1899. E. V. Cooper, J. P."
Mr. White. There is a latent ambiguity appearing in the bail bond. We offer this in evidence to prove that the defendant was held for the offense alleged in the first count of this information.
Mr. Hayes. We object to it because it does not show that the defendant was held to bail to answer any offense at all.
LORE, C. J. We understand that your objection is to the admission of this paper, not to its sufficiency when admitted. It may be admissible, and yet may not be sufficient But we are now upon the question of its admission in this case. We think it is admissible for whatever it is worth, and rule it in.
The defendant excepted.
The justice was then asked by Mr. White: "Was there, or not a warrant presented to you by any officer of the law at the time Doctor Moore executed that bail bond?"
The question was objected to by counsel for defendant, and Mr. White stated that the bond recited that the defendant was held for using money to "influence certain persons to register as qualified voters," etc., and that the state proposed to prove by the whole record of the proceedings in the case which terminated in the execution of the bond that "certain persons" included the person named in the first count of the information, viz. Elijah M. Gregory, and that he intended to confine himself to the record.
Counsel for defendant We object to the admission of any testimony which explains or in any way modifies or alters the phraseology of the bond. We object to everything except the bond. We hold, on the authorities previously cited by us, in the cases in Alabama, Texas, and Georgia, that in a suit upon a bail bond no testimony whatever can be introduced to explain the bail bond or to make it sufficient, if it does not show upon its face that it is sufficient; that, where the bail bond does not fully disclose the crime, parol testimony cannot be introduced to show that there was a crime for which the man was held to bail. The ground on which those decisions rest is that the ball bond is a document made in strict accordance with express direction of law, and that the rule of law in such a case, where the law requires that the contract be put in writing,—and a bail bond is a contract,—is that you cannot modify that in any way, or vary the words or meaning of the contract, by parol evidence. To the same effect are the following cases in our own state: Crockett v. Green, 3 Del. Ch. 466, 485; Tatmsrn v. Barrett, 3 Houst. 226; also, Clark, Cr. Proc. 91; Nicholson v. State, 2 Ga. 363.
Counsel for the State. This is not a case of varying a written contract by parol testimony. We are not dealing here with the contents of this contract. The issue is whether the defendant was held to bail for attempting to influence Elijah M. Gregory to register as a qualified voter in representative district No. 1, Kent county. That being so, we are not offering parol testimony to vary the contents of this bond, but .we are offering the entire record in the case to prove that fact. We started out in this case to prove the entire record, but the court held it was only necessary to prove the bond. We propose to show by the entire record that the bail bond was founded upon the warrant, and that the warrant was founded upon the complaint, so that there cannot be any room to doubt that the proceedings, from their inception to their conclusion, were bona fide and legally complete. When the issue is raised as to whether this man was held to bail for the offense named in the information, it is competent and absolutely necessary to introduce the entire record to prove the fact as to whether or not the defendant was held to bail for influencing Elijah M. Gregory. It is a matter of the admission of the record. Shall a part of the record be conclusive, or is the entire record admissible to prove the fact? As a general principle of law, the entire record must be introduced, and not a part of it, to prove that fact Section 8, art 5, of the constitution.
BOYCE, J. "Every prosecution for any of the offences mentioned in section 7 of this article shall be on information filed by the attorney general after examiuation and commitment, or holding to bail," etc., is the language of the constitution. It may be observed at the beginning of what I have to say that the initial "examination and commitment, or holding to bail," in the prosecution of one of those offenses, is a matter of substance in the procedure, and not one of mere form, although, as we have already held, whether the preliminary steps have been taken under the requirement of tl)e constitution is a question for the defense, under a proper plea, rather than one affecting the jurisdiction of the court. The question now presented by the plea in abatement filed in this case is, in effect, whether the defendant was, prior to the filing of the information by the attorney general, held to bail for the same offense charged in the information. Upon the issue in fact thus tendered there has been a joinder by the prosecution; and the execution of the bail bond having been proved, and the bond itself admitted in evidence, subject to the objection made by counsel for the defendant that the offense mentioned in the bond is not the same as is charged in the information, the attorney general has proceeded to inquire of the witness Ezekiel V. Cooper, Esq., the justice of the peace who held the defendant to bail, as to matters aliunde the bond,—touching the record of the justice in the preliminary proceedings below. The question which has been propounded to the justice is, "Was there, or not, a warrant presented to you by any officer of the law at the time Doctor Moore executed that bail bond?" The question has been objected to, and counsel for the defendant has called upon the attorney general to state the object and purpose thereof. The latter has replied, in substance, that the evidence sought to be introduced is to show by the record of the justice, from the filing of the complaint and the proceedings thereafter to the taking of the bail bond, that "certain persons" embraced in the description of the offense charged in the bail bond include, among others, the name of Elijah M. Gregory, mentioned in the information filed in this case. We are therefore informed that the attorney general now proposes to go outside of the bail bond, to ascertain and show by the record of the justice, if perchance the record may disclose, either by the complaint filed or otherwise, the identity of the offense for which the defendant has been held to bail as described in the bail bond and that charged in the information. After the most careful consideration which I have been able to give the question involved in this issue in so limited a time, I am brought to the conclusion, without stopping to give any extended reasons therefor, that before the attorney general is authorized to file an information for any of the offenses enumerated in section 7, art. 5, of the constitution, it must, at least, in the case of a "holding to bail," substantially appear on the face of the bail bond that one of the offenses defined by the constitution, for which an information may be filed, is charged or set forth in the bond, for the reason that in order to constitute a holding to bail, within the meaning, contemplation, and purpose of the constitution, the bail bond sent up to this court must charge an offense within the terms and provisions of the constitution, in language sufficiently certain to inform the accused of the offense with which he is charged, so that the. defendant, in the preliminary proceedings required by the constitution, may have notice of the nature and character of the offense charged against him. We may say that the description of the offense necessary to be embodied in the bail bond need not, however, be so particular and technical as is required to be charged in the information. If, therefore, the offense charged is not thus substantially set forth in the bail bond, which, after all, is the primary and exclusive evidence of a holding to bail (the rules of secondary evidence as to lost instruments being applicable), then this court is not warranted in going into a hearing and examination of the record of the justice for the purpose of supplying a material defect therein in that regard. And it is the judgment of a majority of the court that the evidence which is now sought to be introduced by the attorney general is not admissible,—at least, for the purpose for which he seeks to offer it; for, if the bail bond in evidence in this ease be materially defective, such defect cannot be cured in this way. In arriving at this conclusion, we do not feel that it will necessarily retard or hinder the due administration of justice in the case now before us, nor that it will have the effect to embarrass the prosecuting officer in like cases in the future. Whenever a defective or insufficient bail bond shall be sent up to this court in similar cases, it will be necessary for the attorney general to procure a proper one before filing his information, for the same reason that he must always seek a good and sufficient indictment where one found is bad or insufficient.
PENNEWILL, J. I entirely concur in the opinion delivered by Judge BOYCE. The sole and distinct issue raised by the plea in abatement is whether the defendant was held to bail by the justice of the peace for the offense charged in the information. The plea is based on the provision of the constitution which permits the filing of an information only after an examination and commitment or holding to bail for some offense enumerated in section 7 of article 5 of the amended constitution. This provision is in section 8 of said article, and is in the following language: "Every prosecution for any of the offences mentioned in section 7 of this article shall be on information filed by the attorney general, after examination and commitment or holding to bail by a judge or justice of the peace, and the cause shall be heard, tried and determined by the court without the intervention of either a grand jury or petit Jury." This court has already, in the progress of this case, decided that the failure to hold to bail for the offense charged in the information is a matter that the defendant may take advantage of by proper plea, and it is not disputed that the plea in abatement is the proper plea. It must be observed that the question is not whether a complaint was made or warrant issued by the justice, or what was contained in such complaint or warrant, if made or issued. Under the plea filed, there is but one point to be considered and determined by the court, and that is whether there was a holding to bail for the offense charged in the information. That being the only fact in issue, the question arises, how shall it be proved? Can the record of the justice, or anything other than the bail bond, be admitted to prove such fact? It should be borne in mind, in the discussion of this question, that under the laws of this state a bail bond is required to be given, and it is also required to be in writing. The attorney general insists that such bond is a record of this court in this case, and that it is sent up here, under a requirement of the law, by the justice before whom it was taken. If such be the case, certain it is that neither the complaint, warrant, nor any other paper or proceeding before the justice is sent here, or is required by law to be sent. Assuming the position of the attorney general to be true, we have the bail bond as a record in this court, and that alone from the justice of the peace. But it may be a question, after all, whether the bail bond is, in effect anything other than a contract, under hand and seal, between the principal and surety therein and the state, and governed by the same principles of law and evidence, in the contention before us, as other sealed instruments. I recognize the fact that this is not a suit on the bail bond, but it by no means follows that the rules of law would be in any wise different when it is sought to vary, modify, or explain the bond, in which there is no latent ambiguity, and when such bond is required by the laws of the state to be in writing. There seems to be abundant authority to the effect that you cannot modify or explain by parol testimony the terms or provisions of a contract required by law to be in writing. What other rule of evidence can be applied to this case? Certainly a more liberal rule cannot be contended for, because this is a criminal action, and not a civil action based on a contract; because no principle of law is more clearly settled than the one which permits nothing to be gathered or supplied by inference or intendment in a criminal proceeding, that may affect the rights of the defendant. The bond recites that the defendant was held to bail for using money to influence to register "certain persons," and it is sought to show by the record before the justice, to wit by the complaint and warrant who were meant by the words "certain poisons." In other words, the effort is to vary or explain the bail bond by introducing evidence aliunde the bond, and extraneous thereto, to show that the defendant was held to bail for using money to influence Elijah M. Gregory to register, when, according to the bond, he was not held for that offense. It is an attempt to explain or supply by extraneous evidence Something in the bail bond, there being no latent ambiguity therein, so that it may be made to appear that the defendant was held to bail for the offense charged in the information, when the bond described no such offense. I think that neither reason nor authority will sanction the admission of such testimony, or warrant such proceeding. The constitution provides that there shall be an examination and commitment or holding to bail before there can be any information filed. The holding to bail is a fact to be proved by the state when a plea of abatement is filed in the case. But surely no one would contend that such fact could be proved in any other way than by the bail bond itself, when such bond can be and is produced, as in the present case. Certainly the complaint and warrant, or any other part of the record of the justice, could not be admitted to prove that the defendant was held to bail. How, then, can it be successfully argued that such evidence can be admitted to show the offense for which he was held to bail? The fact that the defendant was held to bail for the offense charged in the information is to be proved, just as the fact that he was held to bail; and how can it be proved otherwise than by the bond itself? The bond is the thing that holds the defendant and secures his appearance at court to answer to some charge. But for what charge is he to answer? How is he to know, and how is it to be ascertained? Must it not be incorporated in the bond? Unless it be at least substantially set forth therein, how can the defendant know for what he is to answer? It is the bond that the defendant and his surety sign and deliver. It constitutes their undertaking and agreement with the state, and by its very terms becomes void and of no effect if the defendant appears and makes answer to the charge therein mentioned. The offense therefore enters into, and becomes an essential part of, the condition of the obligation; and how can it be omitted without invalidating the instrument, or making the bond insufficient in law? Not only is it reasonable and proper that the offense should be sufficiently described in the bail bond, but it is absolutely necessary because such offense Inheres in the undertaking and agreement of the parties, which is evidenced by the bond, and by that alone. But, as a matter of fact, how could it be shown that the "certain persons" mentioned in the bail bond embraced the individual named in the information, unless the justice of the peace who took the bond is permitted to explain whom he meant by "certain persons"? He is the officer who held the defendant to bail, and he alone would be able to say whom he meant by the general language he employed in the bond. But certainly no one will contend that the justice could be allowed to so explain. To permit him to do so would be in violation of one of the plainest and clearest rules of evidence. How is it possible, then, to permit the introduction of the complaint, warrant, or any other part of the record of the justice, to accomplish the same purpose? How could it be any the less in violation of the well-settled principles of law, because the complaint and warrant are parts of the record in the case before the justice? Unquestionably, they are not parts of the record in this court. But it is insisted that, because the bail bond is admitted in evidence, it would be perfectly proper and legal to admit the whole record of the justice, because the bond is only a part of the record in the case. It must be perfectly obvious, however, that, even if the bond is a part of such record, it is the only part of which the constitution speaks, so far as the question now before us is concerned, and the only part with which we have to do. But, if the testimony sought to be introduced were not inadmissible under the rule of evidence already mentioned, how could it, I submit, be material to the issue now before the court? How is it possible that the record of the justice can supply an omission in the bail bond, or in any wise aid the bond in the matter of the offense? The question is not for what offense, under the record below, the defendant might have been held to bail, or should have been held to bail; neither is it for what offense the justice intended to hold him to bail, but for what offense in fact he was held to bail. And. if it does not appear from the bond itself that the offense for which he was held is the same as that charged in the information, it is not, in my opinion, competent or possible to show it by other evidence. I therefore think that the record of the justice, or any testimony other than the bail bond, is inadmissible to prove the offense for which the defendant was held to bail.
LORE, C. J. (dissenting). The question before us is whether the bail bond taken before the justice of the peace in this case below is the only evidence that we may consider in ascertaining the fact of whether there was a "holding to bail" in this case, within the meaning of the constitution. Is the bail bond itself all that is included in that term, or does the term include the legal proceedings of which the bail bond is only one and the concluding part? Upon the interpretation of these three words this question depends. The constitution does not define what a "holding to ball" means. We must therefore look for its interpretation to the laws of this state governing the criminal jurisdiction of a Justice of the peace or other committing magistrate. A bail bond does not stand alone, as an independent and complete proceeding in itself. A Justice of the peace may not, of his own volition or of his own caprice, without due process of law, compel a person to execute a bail bond. He must proceed under the authority of his general criminal jurisdiction, described in chapter 97 of the Revised Code, unless otherwise expressly provided. This includes the warrant for and arrest of the defendant, an examination or waiver thereof, then a commitment or a bail bond, of all which necessary proceedings, under section 3 of the said chapter 97, the justice of the peace must keep a record. Therefore, "holding to bail," it would seem, presupposes and includes all these connected and necessary features appropriate to each case. Of this record the bail bond is only a fragmentary part. The constitution evidently contemplates that there must be such a preliminary hearing before a judge or justice of the peace, including a commitment or bail bond, before the attorney general can file an information in any such case. If such preliminary hearing be had in fact, the constitutional prerequisite to the information is fully met if that preliminary hearing has been had, what may be the evidence of the offense charged? Are we confined to the face of the bail bond? Is this the only, the conclusive, and exclusive evidence of that offense, or may we examine the entire record, of which the bail bond is only one related part? We are not interpreting a contract, but seeking the evidence of what is the offense charged below. If we are confined to the face of the bail bond in ascertaining this fact, then the crime prescribed in the constitution may have been committed, the constitutional preliminary hearing duly had, and every safeguard provided by the constitution thus thrown around the defendant; yet because the justice of the peace has not technically and clearly set out the specific offense in the bail bond, the criminal goes unwhipped of justice, although the general clause of the bail bond covers this offense in general terms. This would be sacrificing substance to a matter of form. Again, if the face of the bail bond be the only evidence admissible as to the offense on which the hearing was had below, gross injustice might result to the defendant. From ignorance, mistake, or otherwise, a defendant might execute a bail bond for an offense entirely different from the one covered by the hearing below; yet, in such a case, on the trial on the information in this court he would be precluded from showing from the record of the justice of the peace that it was not the offense for which the hearing was had, the face of the bail bond in such case being conclusive. It will be seen that such a rule would annul the constitutional protection of a preliminary hearing in that particular case. it must be borne in mind that this is not a suit upon an instrument of writing,—a written contract between the parties, where both are necessarily confined to what is contained within the four corners of the paper itself, where the contraqt is clear and unambiguous; but this is the mere ascertainment of the fact of whether the defendant had the constitutional preliminary hearing, and with what offense he was charged in that hearing; the bail bond being only one of the several parts of the record of that hearing, more than one of which several parts might and should disclose the offense charged. It is not a question of the contradiction, modification, or alteration of a contract in writing by parol evidence, and therefore does not come within the cases cited by the defendant. It is merely the ascertainment of the offense charged against the defendant from the whole record, every part of which is of equal force and validity, under the well-settled rules of evidence. If the defendant in fact was arrested for the offense, had a hearing or waived a hearing, and executed a bail bond for this specific offense, and that fact appears on the entire record, although it is not fully disclosed on the face of the bail bond, in my judgment we should consult the entire record, and not confine ourselves to a fragment thereof; otherwise, we permit the failure of the justice to set forth the particular offense on the face of the bail bond to vitiate the entire proceeding, and thus defeat the salutary provision of the constitution as to this particular prosecution. By such a construction we make the conviction or acquittal of the defendant depend upon the skill of the justice of the peace (who may be unlearned in the law) in drawing legal papers, and not upon the main issue, as to whether the defendant is guilty or innocent of the crime charged. Adopt this rule in such cases, and we will find ourselves, in many cases, upon subtle objections raised by gentlemen learned in the law, trying the capacity of the justice of the peace, and not the defendant's guilt. This, too, on inspection of a fragment of the record of the justice, while we deliberately shut our eyes to and exclude all the rest of the record, which might remove all doubt. It would be no stretch of fancy to behold the defendant looking on in somewhat merry amusement in this contest over words and phrases,—this trial of the proficiency of the justice, under which he goes free, although upon the merits he would readily be found guilty. I cannot believe that the phrase "examination and commitment" on the one hand, or "holding to bail," on the other hand, as used in the constitution, embodied as they are in a provision which is broadly remedial in its character, and was designed to meet and overcome a grave menace to our institutions,' is to be interpreted by such a narrow ruling. These terms mean not only the paper commitment and the paper bail bond, but also the entire record of the justice of the peace in each particular case, of which these respective papers are only the conclusion. In my judgment, the court, under the rules of evidence and in the due administration of justice, may, and in cases of doubt is bound to, examine the entire record as to any fact which is properly disclosed upon the face of that record, and we should not suffer the arm of the law to be paralyzed by the examination of a part of the record, when the whole record would carry out, and not defeat, the constitutional provision. For these reasons, I am compelled to dissent
The defendant was discharged.