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https://www.courtlistener.com/api/rest/v3/opinions/8487317/ | Pennewill, C. J.,
delivering the opinion of the court:
The Court have heard the argument based on the reasons urged in support of the above-mentioned motion and have carefully *380considered the same. The only reason particularly emphasized and the only one apparently relied on with much confidence is the admission in evidence of what counsel for the defendant terms a second offense. A number of authorities were submitted in support of the motion, but only two or three of them were read to the court and presumably the ones upon which the defendant relied.
We have examined with some care those cases and find in them nothing opposed to the admission in evidence, in this case, of the testimony objected to.
In People v. Gibson, 255 Ill. 302, 99 N. E. 599, 600, 48 L. R. A. (N. S.) 236, the defendant had committed sexual intercourse with two women, and testimony was admitted respecting both offenses. The court, in its majority opinion, two Justices dissenting, said:
“At the conclusion of the evidence plaintiff in error requested the court . to instruct the jury not to consider the testimony of Nora Porter and Ida that he also had intercourse with Nora, but the instruction was refused. Counsel for the state endeavor to sustain these rulings of the court on the ground that the offense against Nora Porter was so connected with the offense charged in the indictment as to form part of the transaction, and therefore proof of the offense against Nora tended to establish the offense against Ida. We do not think this position sustainable upon reason or authority. The offense testified to as having been committed upon Nora Porter was no part of the offense for which the plaintiff in error was being tried. It was a separate and distinct offense, no part of the res gestae, and proof of it was inadmissible upon any ground.
“The. rule repeatedly announced in cases of this character is that a separate and distinct offense cannot be proven in support of a prosecution for another offense.
“But there is an exception to the rule when the two acts are so connected as to be parts of one transaction. In that case proof of one tends to establish the other.”
See, also, Rex v. Folks, Moody’s Eng. Crown Cases 354; State v. Dooley, 89 Iowa 584, 57 N. W. 414; 3 Russell on Crimes (6th Ed.) 403.
When the facts in the present case are considered, we think the cases referred to are authorities in support of the ruling of this court. What are the facts with respect to which the defendant calls the second offense? According to the testimony of the prosecuting witness, the defendant had seized and thrown her on the bed, had sexual intercourse with her by force and against her will, and, while still lying on her and choking her, a call was made at the door only *381a few feet away, whereupon the defendant got up, went just outside the door, and she, the prosecuting witness, got up and taking up her baby, went to the door and tried to close it, but was prevented by defendant's kicking it open; that the defendant again entered the room and again seized and threw her on the bed and continued to assault her.
The court admitted the testimony objected to because it was convinced that what the defendant calls the second offense was so closely connected with the offense charged in the indictment in time and circumstance as to constitute one and the same assault and was unquestionably a part of the res gestae.
We do not deny that it would be improper to admit evidence of other offenses independent of the crime charged, but such was not the evidence admitted in the present case.
Our attention has not been called to any case that is opposed to the ruling of this court in admitting the testimony objected to, and we think that none can be found.
Another case cited by the defendant is People v. Robertson, 88 App. Div. 198, 84 N. Y. S. 401. It appears from an examination of the facts in that case that the offense charged was committed on the thirteenth of February, and the second offense admitted in evidence over the objection of the defendant’s counsel was committed on the twenty-first day of February. This fact clearly differentiates the case cited from the present case, because there was no question of “res gestae” involved.
The other cases cited by the defendant are even more remotely connected with the instant case.
Another reason urged in support of the above-mentioned motion is that the court failed in its charge to the jury to instruct the jury for what reason the testimony respecting the so-called second offense was admitted. The obvious reply to this objection is that'if the second assault was a continuation of the first and so closely connected therewith as to constitute a continuous assault and form a part of the res gestae, there was no reason for such instruction. The jury had a right to consider any and all of the evidence in *382determining whether the defendant was guilty of the crime charged in the indictment.
The motion of the defendant’s counsel is, therefore, refused.
Note. After the refusal of the motion above referred to, the defendant was sentenced by the court; the sentence to be carried out on August 22, 1930.
Two other motions for a new trial were, however, heard on July 18 and August 21, 1930, respectively, the Court of Oyer and Terminer still being open on those days and there being no rule of court providing that all reasons for a new trial should be filed within a prescribed time after the trial.
Both of these motions were based on after discovered evidence, but were refused by the court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487318/ | Pennewill, C. J.,
delivering the opinion of the court:
Rape is a felony (section 4706, Revised Code of 1915), but because of the proviso as to capital cases in section 4827 of the Code, and above referred to, the motion for a new trial is refused. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487319/ | Pennewill, C. J.:
Under the authority of the Delaware cases referred to, as well as what we conceive to be the preponderance of authority outside of this state, we feel constrained to overrule the objection.
Refreshing his memory from his transcribed shorthand notes, taken at the time, the witness then testified to the confession of Galvano that he had killed Cline in this county and state; that he had killed him with a pistol and the mode of such killing.
The State called as a witness one George W. Johnson, who did not answer. Whereupon, the respective counsel in the case conferred with the court privately regarding the proposed testimony of Johnson, and requested that they be permitted to argue the question of its admissibility during the absence of the witness. Thereupon, the court instructed the jury to retire to their room and proceeded to hear the argument.
Pennewill, C. J.: We understand, Mr. Reinhardt, what you propose to prove by the absent witness, and that you, Mr. Morris, representing the defendant, Emery, will resist the introduction of that testimony.
Mr. Morris: I do not know that we are quite together on what this witness will say, if examined, but even if his testimony will go as far as claimed by the Deputy Attorney-General, it will not be admissible.
I understand that the State expects to prove by Johnson that the defendant, Emery, approached him some two weeks before the night of the twenty-fourth of December, the date alleged in this indictment, suggesting that they rob somebody, or even, perhaps, “bump him off,” as they call it. If I understand the proposed testimony correctly, it would not name the deceased, Cline, or refer to *416the night in question, but would merely involve the suggested commission of an offense with Johnson and not with Galvano.
There is, therefore, nothing about the evidence which the State seeks to introduce to show that it is a part of a general scheme or plan, or that it had anything to do with the intent of Galvano or Emery to commit the crime in question.
The only purpose for which it can be offered is to show a general tendency on the part of Emery to commit some crime; not the crime of murder, but, perhaps, the crime of robbery.
I submit that it is not only improper but unfair for the State to offer, as a part of its case, anything to show a criminal tendency on the part of a defendant. Whart. Cr. Ev., vol. 1, pp. 192, 193,
247. It is another way of attempting to attack his character and blacken his reputation in the eyes of the jury when character has not been put in evidence by the defense. Perhaps statements made by the defendants, or either of them, if they showed a plan by them to rob Cline, or to hold him up in this way, might be admissible, though I have grave doubts even as to that, and can find no authority for it. Jones on Evidence, vol. 2, p. 1173.
Pennewill, C. J. (Interrupting): We think we will hear what the State has to say.
Mr. Reinhardt: The statements, made to Johnson are merely offered to show a malignant nature and an intent to kill someone; and from such statements Cline could be included within that intent. 30 C. J. 155, 156; Commonwealth v. Page, 265 Pa. 273, 108 A. 527; Underhill on Criminal Evidence, § 508, p. 732; Hopkins v. Commonwealth, 50 Pa. 9, 88 Am. Dec. 518; Com. v. Troup, 302 Pa. 246, 153 A. 337.0
We expect to show that Emery approached Johnson shortly before Cline was killed and asked Johnson if he would meet him near Delaware City; that he would have somebody he knew had money and bump him off and take his money and give him (Johnson) half of it, and that he would see him a couple of nights beforehand so that they could plan how it should be done.
The indictment alleges that Cline was killed December 24, and, if it be contended that the statement made was too long before he *417was killed to make it admissible, our reply would be that remoteness here would merely affect the weight of the evidence and not its admissibility. 35 C. J. 156; Frick v. State, 128 Md. 122, 97 A. 138; Com. v. Troup, 302 Pa. 246, 153 A. 337.
Pennewill, C. J.: In addition to the statements made by the defendants was there any real or substantial evidence in the cases that you have cited to show that they were connected with the homicides for which they were being tried?
Mr. Reinhardt: There was other evidence in Hopkins v. Com., 50 Pa. 9, 88 Am. Dec. 518, and in Com. v. Troup, 302 Pa. 246, 153 A. 337, but the report of Com. v. Page, 265 Pa. 273, 108 A. 527, does not disclose what other evidence was introduced.
The witness, George W. Johnson, having arrived, the jury was again brought into the court room. On examination by Mr. Satterthwaite, he then testified as follows:
Q. Were you a private at Fort Du Pont in November and December of last year—last fall?
A. Yes, sir.
Q. Do you know Alonzo Emery, the man here in the box (indicating the defendant, Emery) ?
A. I do.
Q. How long have you known him?
A. A year and a half.
Q. Did you have any conversation with Emery during the month of December in Delaware City?
A. Yes, sir.
Q. About when was this conversation—about what time in the month?
A. Around the second week in December, about the 14th or 15th.
Q. What did Emery state to you at that time and place?
Mr. Morris: I object to the question. I stated my reasons while we were waiting for this witness.
Pennewill, C. J.: Of course, we know what the question is, and probably what the answer will be. We wish to say that we are in some doubt as to the admissibility of this testimony. It is an *418important question both to the State and to the defendant, Emery, and we have not been able to examine the authorities with as much care as the importance of the question demands. However, we propose to admit this testimony now, and, if, after a further examination during the recess, we conclude that it was improperly admitted, we will strike it out in the morning.
A. He asked me if I would meet him out along around Delaware City or right out close beyond it, and he said he would have somebody he knew had money and bump him off and take his money, and he would give me half of it. He said he would see me a couple of nights before this was to happen, so that we could make preparations how it was to be done.
The Court, desiring further time to examine the authorities, did not decide whether the testimony admitted over the objection of counsel for Emery should be stricken out, but stated that its admissibility would be passed on in charging the jury.
Pennewill, C. J., charging the jury:
The two defendants are charged in this indictment with murder of the first degree.
While the charge is murder of the first degree, it is possible, under such an indictment, for the jury to find any one of the following verdicts against both or either of the defendants, as the evidence in the judgment of the jury shall warrant, viz.: Guilty in manner and form as indicted; that is, murder of the first degree; guilty of murder of the second degree; guilty of manslaughter; or not guilty of any crime.
It is necessary, therefore, for the Court to tell you as clearly as we may what constitutes murder of the first degree, murder of the second degree, and manslaughter.
Murder of the first degree is where the killing was done with express malice aforethought, that is, where one person kills another with a sedate, deliberate mind and a formed design. Such formed design may be shown, for example, by lying in wait for the deceased, by threats that disclose a purpose to commit the act charged, by ill-will, spite or hatred against the deceased, or any *419other circumstance which shows that the prisoner had the intention to kill when he made the attack on his victim. The deliberate selection and use of a deadly weapon is a circumstance which indicates a formed design to kill, in the absence of evidence showing a contrary intent.
If the prisoner, before committing the fatal act, had made up his mind to kill the deceased, it does not matter for how short a time such intention existed, if it was but for a moment and resulting in the killing, it was murder of the first degree.
In order, therefore, to find a verdict of murder of the first degree, the jury must be satisfied that the killing was done with express malice aforethought, that is, with a sedate, deliberate mind and formed design to kill.
Murder of the second degree is where the crime is committed with implied malice; that is, where the malice is not expressed, as in murder of the first degree, but is a necessary inference from the facts actually proved. It is where there is no deliberate mind or formed design to take life, but where the killing was, nevertheless, done without justification or excuse, and without adequate provocation.’ For example, where the killing was done without the design and premeditation required to make the act murder of the first degree, but it was done with a wicked and depraved heart, or with a cruel and wicked indifference to human life the law implies malice and makes the offense murder of the second degree.
You will observe from what we have said that there must be malice to constitute murder of either degree; it must be express in the first and implied from the facts proved in the second. It is difficult to explain clearly what the law means by malice. We may say, however, that it is a condition of the mind and heart at the time of the fatal act. Express malice, as we have said, is usually shown by something the prisoner did or said before the killing, such as lying in wait for, or threatening, the deceased, the manifestation of ill-will, spite, hatred, or revenge, the selection and use of a deadly weapon, or some other circumstance which indicates clearly that the prisoner had the intention to kill when he made the fatal attack. Implied malice must be shown by the character of the fatal act. If *420it was an unlawful and .cruel act, voluntarily committed, with a wicked indifference to human life, and without adequate provocation, no matter how suddenly it was done, the law says it was done with implied malice. Where the killing was done with a deadly weapon, it is presumed to have been done maliciously, and the burden is on the accused, to show the contrary.
Manslaughter is where one person unlawfully kills.another without malice in his mind or heart; for example, where one in a sudden fight, in the heat of blood, or in a transport of passion, inflicts a fatal wound, without time for reflection or for the passions to cool. This is because of the allowance the law mercifully makes for human frailty or infirmity under great and sudden provocation. But notwithstanding the provocation and passion, if the slayer has time, before inflicting the fatal blow, to exercise his reason and realize that the act he is about to commit is unlawful, it would not be manslaughter, but a murder of the first or second degree, according to the circumstances preceding or attending the act. If, however, the killing is done while the reason is unseated, and without time for reflection, • the crime is reduced to manslaughter. And so, while murder proceeds from a wicked and depraved spirit, and is characterized by malice, manslaughter results, not from malice, but unpremeditated and unreflecting passion.
You will remember that State’s witness, Johnson, testified that defendant, Emery, made a proposition to him about a week before the killing of Cline, that they take out some man who had money and rob him and knock or bump him off, or words to that effect. You will also remember that the Court, when admitting that testimony, stated that if, upon further thought and examination of the authorities, we became convinced the testimony was improperly admitted, it would be stricken out. We have concluded, however, that we cannot strike out such testimony, because the intended victim was not specifically named as a person other than Cline, but some man who had money. This was a general description of a class of men who had money and might include Cline.
Such testimony, according to the authorities, is admissible for what it may be worth in the judgment of the jury on the ground *421that it shows a state of mind on the part of the defendant, and a malignant nature, in that he had the thought, intention and desire to commit a crime similar in character to that involved in the case on trial. It does not prove that the defendant was guilty of the crime charged, but is a circumstance which indicates that he was capable of committing the crime charged if he had the opportunity.
But we instruct you that nothing that Johnson testified Emery said to him about robbing a man and bumping him off can be considered by you unless you are convinced that there is other testimony in the case, independent of that given by Johnson, which tends to show that Emery was implicated in the killing of Cline. The testimony given by Johnson would not in itself warrant the conviction of Emery of any crime. And even if Johnson’s testimony can be considered by you, because you think there is other and independent testimony, its weight and effect is for you to decide; and in determining its weight and effect, you may consider the time to which it relates and any other circumstance which, in your judgment, affects its credibility or value.
If the proposition made by Emery to Johnson was made some days before Cline was killed, it should not have the same weight and effect as if made very near the time. You should consider the time when it was made and the manner in which it was made in determining its probative value. We may say that such testimony has only such probative value as the jury think it is entitled to under all the circumstances of the case, and is to be considered in connection with other criminating evidence, if any there be.
In respect to the case against.Emery, we further instruct you that if there is no evidence sufficient to connect him with the killing of Cline, that is, no evidence that he participated in the killing, or had knowledge before the killing that the purpose was to kill him, your verdict should be not guilty as to him, because anything he may have done after the killing in the way of suppressing or concealing the fact and otherwise aiding the actual offender in avoiding arrest, trial and punishment would not make him guilty Under the present indictment. Whether he would," on account of *422such wrong doing or misconduct, be guilty of some other charge, not embraced in the present indictment, we express no opinion. Or, to put this instruction in the language of the defendant, Emery’s prayer, if you should believe that he, Emery, did not knowingly assist in the killing of the deceased, that is, if you should decide that Emery’s first wrong doing occurred after the deceased had been shot, you cannot find him guilty of any crime under the indictment in this case. He might, in such case, be guilty of being an accessory after the fact, that is, after the killing, but you cannot find him guilty of that offense under the indictment in this case. He may be tried for such offense under a different indictment or information.
It is the duty of the Court to call your attention to a law of this state, of which counsel have spoken in their arguments, and which is in the following language:
“That in all cases where the punishment prescribed by the laws of the State of Delaware is death, if the jury shall at the time of rendering their verdict, recommend the defendant to the mercy of the court, the court may, if it seems proper to do so, impose the sentence of life imprisonment, instead of death.”
This statute is plain upon its face and means, of course, what it says, but it does not mean that the jury shall, in every case, make such recommendation, but only where the evidence, in the judgment of the jury, warrants it. It does not mean that the jury shall make such recommendation from sympathy alone. The statute is, however, a humane provision of the law, and the jury are warranted in making the recommendation when they believe from the evidence, all things considered, that life imprisonment would meet the ends of justice and be a sufficient punishment for the crime. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487321/ | Pennewill, C. J.:
The contention of the defendant’s
attorney may be in conformity with the trend of recent authority; but we cannot disregard a decision in our own state which seems to be directly in point. State v. Turner, Housh Cr. Cas. 76.
The objection of the State is, therefore, sustained. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487322/ | Pennewill, C. J.:
The objection is sustained. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487323/ | Layton, C. J.,
charged the jury in part as follows:
Harry Lee, the defendant, is charged in this indictment with murder in the first degree of Percy Bordley.
The State contends that on July 14 last, at about eleven P. M., on Church Street, in this city, the prisoner was seen running after the deceased; that the prisoner, being some fifteen or twenty feet from deceased, threw a brick at him, which, hitting him in the head, felled him; that then the prisoner with a brick held in his hand repeatedly struck the deceased in and upon the head and body, and also repeatedly kicked him; and that the deceased died by reason of a skull fracture caused by the prisoner’s striking the deceased with the brick, either by throwing it, or by holding it in his hand.
*15The State, therefore, contends that the prisoner killed the deceased without justification or excuse and of his own express malice aforethought, and, therefore, is guilty of murder in the first degree.
The prisoner does not deny that the deceased died as a result of a fracture of the skull, nor does he deny that he threw a brick which hit the deceased; but does deny that the killing was with malice.
He contends, first, that the killing was done in a transport or gust of passion aroused by his seeing, a few minutes before, his wife and the deceased in the act of adultery at the house of the wife at 516 Church' Street, and that, therefore, at most, he can be guilty only of manslaughter under the Statute; secondly,' he contends that his killing of the deceased was justifiable in that he acted in necessary self-defense, and is, therefore, not guilty of any crime whatever.
Generally, homicide is the killing of one human being by another. Felonious homicide is divided into three classes, (1) murder of the first degree; (2) murder of the second degree, and (3) manslaughter.
To constitute murder of either degree, the element of malice must be present; for, without malice, there can be no murder; and with malice, there can be no manslaughter.
In murder of the first degree, the malice must be express or actual malice; in murder of the second degree, the malice is inferred or implied from the facts proved.
In common acceptation, the term malice means hatred, spite, or ill will against a person, but, in its legal sense, the sense in which it is used with respect to the crime of murder, it is more comprehensive than mere personal hatred, spite, or ill will, for, while it includes those conditions of mind and heart, it comprehends and includes *16all acts done from an unlawful and wrongful motive, or, to put it in another way, it includes all acts done voluntarily and with a wilful disregard of the rights and safety of others. Malice, then, is a condition of the heart or mind existing at the time of the commission of the fatal act, and includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief.
Express, or actual malice, is usually shown by something the accused said or did before the killing, or some other circumstance which indicates that the accused had the purpose and intention to kill when he made the fatal attack.
Implied, or constructive malice, must. be shown by the surrounding circumstances, and by the character of the attack. Where there is no proved fact or circumstance indicating a purpose and intention to kill, yet where the fatal act was unlawful and cruel and voluntarily committed, without adequate provocation and in circumstances showing a wicked indifference to human life, or with a reckless disregard of consequences, the law implies or infers malice, for malice is’ implied by law from every deliberate, cruel act committed by one person against another, no matter how sudden such act may be. The law considers that he who commits a cruel act voluntarily, commits it maliciously, and, whenever from such act, death ensues, unaccompanied by circumstances of justification, mitigation or excuse, the law presumes that the killing was committed with malice; and, therefore, it is necessary for the accused to make out by proof all circumstances of mitigation, extenuation, justification, or excuse as may be relied upon as a matter of defense unless such proof arises out of the evidence produced against him by the State.
Murder of the first degree, therefore, is where the killing was done with express, or actual, malice aforethought. *17That is, where one person kills another with deliberate mind and formed design to kill. Such formed design to kill may be shown in various ways; for example, by antecedent threats or menaces evidencing a desire and purpose to kill, or by lying in wait, by planning or scheming to kill, or by any other fact, or circumstance, or statement which shows that the accused had the intention to kill when he made the fatal attack upon the deceased.
The deliberate selection and use of a deadly weapon, knowing it to be such, is a circumstance which may indicate a formed design to kill in absence of evidence showing a contrary intent. A deadly weapon is such a weapon as is likely to produce death when used by one person against another; and a brick thrown with force and violence in close proximity to the person of another, or used as a weapon to strike by holding it in hand, is a deadly weapon.
No specific length of time is necessary to make an act a deliberate act. A deliberate act may, in fact, be sudden. If the accused, before committing the fatal act, had made up his mind to kill the deceased, even though his design to kill be but the conception of a moment, it is deliberate in the eye of the law, and, if the accused had time for reflection and thought and thinking but for a moment did intend to kill, and did kill the deceased, it is just as much a deliberate killing as if he had intended it for a length of time.
Murder of the second degree is where the killing is done not with express or actual malice, but with implied or constructive malice. Malice, as we have said, is implied by law from every deliberate, cruel act committed by one person against another. Every person is presumed to contemplate and intend the natural and ordinary consequences of his own voluntary act, and, if the act, voluntarily and wilfully done has a direct tendency to destroy the life of *18another, the natural conclusion is that the taking of life was intended.
Murder of the second degree, therefore, is where there is no deliberate mind or formed designed to take life, but where the killing, nevertheless, was done without justification or excuse and without adequate provocation; for example, where the fatal act was done without the design and premeditation required to make the act murder of the first degree, but, nevertheless, done with a wicked and depraved heart, or with a wicked and cruel indifference to human life. In such case, the law implies malice and makes the offense murder of the second degree.
Manslaughter is where one person unlawfully kills another without malice in his heart or mind; that is, where one in the heat of blood, or in a gust or transport of passion, aroused by adequate provocation, without time for reflection or for the passions to cool, kills another. Such killing amounts to manslaughter.
This is because of the allowance the law makes for human frailty or infirmity under great and sudden provocation, but in order to reduce the crime from murder to manslaughter, where a dangerous or deadly weapon is used, the provocation must be great, so great as to produce such an actual frenzy of mind as to render the accused, for the time, utterly deaf to the voice of- reason.
One of the examples usually given of provocation is that which is aroused by a sudden fight, by which the transport of passion is excited.
In the case before you the provocation relied upon arose, according to the contention of the accused, from his coming upon his wife and the deceased in the act of adultery. The law upon this subject is plain. If a man finds another in the act of adultery with his wife, and in the first transport of passion, aroused by the sight, kills him, he *19is guilty of manslaughter only. However, the deceased must be taken in the very act, and the accused must act, and act at once under the sting of the then present provocation, and in the first transport of passion excited by such provocation. If the accused found the deceased in the act of adultery with his wife, or in such circumstances as to indicate with reasonable certainty to a rational mind that they had just then committed the adulterous act, or were then and there about to commit it, and then in the first gust of anger and passion, excited by the then present sight and provocation, he killed the deceased, he is not guilty of murder, but of manslaughter only. State v. Pratt, Houst. Cr. Cas. 249.
If, however, after finding his wife and the deceased in such act of adultery, a reasonable time elapsed sufficient to permit the passions to cool and to allow thought and reflection and reason to re-assert itself, and then the accused killed the deceased; or if the accused deliberately killed the deceased under the impulse of anger, jealousy, hatred or revenge created or excited by his mere belief or even knowledge of his wife’s prior acts of infidelity or intimacy with the deceased, or for any other reason or cause not connected with nor resulting from the provocation excited by finding his wife and the deceased in the act of adultery, such killing was not only without adequate provocation, but was wilful and malicious and constituted murder in the first degree. State v. Pratt, Houst. Cr. Cas. 249.
In this connection, we say to you that Section 4701 of the Revised Code, after defining the crime of manslaughter in ordinary circumstances to be a felony, provides :
“If the manslaughter of which the party is convicted, shall have been committed by a husband on a person found in the act of adultery with his wife, and it be so found by the verdict, he shall be deemed guilty of a misdemeanor.”
*20Whether, however, such are the facts of this case is for your determination from all the evidence before you.
We have been asked to charge you upon the law of self-defense.
The burden of establishing self-defense to your satisfaction rests upon the accused.
No looks or gestures, however insulting, no words, however offensive, can amount to a provocation sufficient to justify an assault.
In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and, if a person is attacked and uses in his defense more force than is necessary for that purpose, he becomes the aggressor. The law recognizes the right of self-defense for the purpose of preventing, but not of revenging, an injury to the person.
If the deceased first attacked the accused, even if the attack was of such character as to create in his mind a reasonable belief that he was in danger of death, or great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant.
Therefore, if you are satisfied from the evidence that the deceased first attacked the accused, and that from the nature of the attack the accused had reasonable cause to believe, and did believe, that he was in immediate danger of death or great bodily harm, and that he had no other reasonable means of avoiding the danger, then the killing would be a justifiable act of self-defense, and the accused should be acquitted of any crime; but in this connection we say that it is not sufficient that the accused at the time believed himself to be in such danger, but the circumstances must have been such, in your judgment, as to justify a reasonble man in such belief.
*21 If a weapon be raised to shoot or strike, or the danger of other personal violence be imminent, the person in such danger may protect himself by striking the first blow, for the purpose of repelling and preventing the attempted injury to himself, using no more force than is necessary for the purpose; but where one is assaulted in a sudden affray, and in the judgment of the jury honestly believed on sufficient and reasonable grounds, that he was in immediate danger of being killed, or of suffering great bodily harm, he would have in self-defense the right to use a deadly weapon against his assailant, but in exercising such right, in a manner likely to cause death or great bodily harm to his assailant, he must be closely pressed, and must have retreated as far as he safely and conveniently could, in good faith, with the honest intent to avoid the danger of the assault.
A free and voluntary confession is generally deserving of the highest credit, because it is against the interest of the person making it, and is presumed to flow from a sense of guilt. The whole of what the prisoner said on the subject, at the time of making the confession, should be taken together, and considered by you; but all parts of a confession whether for or against the prisoner, are not necessarily entitled to equal credit. The prosecution is at liberty to deny or contradict any part of it. In determining the credit to be given to a confession, you may reject, as not entitled to belief, such parts of it as are contradictory to other parts of it, or in conflict with facts otherwise proved to your satisfaction. You may believe that part of the confession which charges the prisoner, and reject that which is in his favor, if, under all the circumstances of the case, you find sufficient grounds for so doing. Your duty in respect of the confessions of the prisoner and in respect of his own testimony and the testimony of the other witnesses is precisely the same. You should believe so much of such confessions and testimony as you deem true *22and worthy of belief, and reject so much of the testimony as you deem false and unworthy of belief.
(The Court here charged on conflict of evidence and on the rules applicable to proof of good reputation of the accused and to bad reputation of a witness.)
As you know, in every criminal prosecution the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. In order to convict the prisoner it is incumbent upon the State to prove beyond such a doubt every material element or ingredient of the crime charg-ed. If, after carefully considering and weighing all the evidence, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt, and. your verdict should be not guilty.
But proof beyond a reasonable doubt does not mean that the guilt of the accused must be established with the absolute certainty of a mathematical demonstration. Matters of fact are required to be proved to a moral certainty. To require more in dealing with human conduct, and the affairs of life, would be impracticable and, therefore, unreasonable. It is sufficient that any disputed fact in the case shall be established by that' amount of competent and appropriate evidence which will satisfy a fair and unprejudiced mind beyond a reasonable doubt.
Reasonable doubt in the legal sense, therefore, does not mean a vague, speculative or whimsical doubt, nor a mere possible doubt, but a substantial doubt, and such a doubt as intelligent, reasonable and impartial men may honestly entertain after a careful examination, and conscientious consideration of all the evidence. If, after carefully and conscientiously considering all the evidence in the case, you believe that the guilt of the prisoner has been established beyond such a reasonable doubt, your verdict should be guilty. If you are not satisfied beyond such reasonable *23doubt of the guilt of the prisoner, your verdict should be not guilty.
Repeating briefly what has already been said for your guidance:
If you believe from the evidence that the accused, with express malice aforethought, that is, with a formed design and purpose killed the deceased, your verdict should be guilty as indicted.
If you believe that the accused killed the deceased, not with express malice aforethought, that is, with no formed design or purpose to kill, but with implied malice, that is, wickedly and cruelly, with no adequate provocation, then your verdict should be guilty of murder in the second degree.
If you believe that the accused killed the deceased without malice express or implied, in a transport of passion, occasioned by adequate provocation, your verdict should be guilty of manslaughter generally.
If you believe that the accused killed the deceased in a transport of passion caused by his finding his wife and the deceased in the act of adultery, as we have heretofore instructed you, your verdict should be a special one, that is, guilty of manslaughter under the Statute occasioned by finding his wife and the deceased in the act of adultery.
If you find that the accused killed the deceased in necessary self-defense, your verdict should be not guilty.
If your verdict should be guilty as indicted, we call to your attention a Statute of this State (29 Del. Laws, c. 266) providing
“that in all cases where the penalty for crime prescribed by the laws of the State of Delaware is death, if the jury shall, at the time of rendering their verdict, recommend the defendant to the mercy of the Court, the Court may, if it seems proper to do so, impose the sentence of life imprisonment instead of death.”
The Statute is a humane provision of law but is in*24tended to apply only to those cases when the jury believes from the evidence, all things considered, that life imprisonment would meet the ends of justice and would be a sufficient punishment.
The statute does not mean that such a recommendation should be made in every case. It should not be made out of mere sympathy; nor should it be made in any case unless the facts are such as reasonably to justify the belief that a recommendation of mercy could be properly considered by the Court under all the facts and circumstances proved, in case there should be a verdict of murder of the first degree.
Now, finally, in a case where any one of several verdicts may be rendered, as may be done in the case before you, the right of the jury should not be exercised capriciously, but the verdict, whatever it may be, should be war- „ ranted by the evidence. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487324/ | Layton, C. J.,
charged the jury, in part, as follows:
You will remember that the State produced a witness before you, one Lewis Smith, at whose testimony when given the State claimed surprise, and the State was allowed by the Court to cross-examine the witness, Smith, as a hostile or adverse witness. During the cross-examination thus conducted certain questions were asked the witness for the purpose of laying the ground to show that upon another occasion the witness had made statements contradictory to or inconsistent with the statements made by him on the witness stand, and the form of questions asked the witness tended to show the contents of such statements. In this connection we charge you that while it is proper to permit a party to cross-examine his own witness, on the ground of surprise, to show that such witness had theretofore made statements inconsistent with or contradictory to his testimony, as given on the witness stand, yet the effect of this is only to discredit the witness, and any contradictory or inconsistent statements alleged to have been made by such witness never can have the effect of affirmative or substantive evidence. 2 Wig. on Evid. (1st Ed.), §§ 902, 903; 6 Jones on Evid. (2d Ed.), § 2430; State v. Wright, 2 Penn. 228, 45 A. 395.
Moreover, in this case the State did not offer in evidence actual proof of any inconsistent or contradictory statements alleged to have been made by the witness, Smith, but contented itself with merely propounding the questions to the witness. Therefore, we say to you that you are not to regard or to consider in any manner, or in any degree, the questions propounded to the witness by the State, after claiming surprise, nor may you draw any inference of fact to the prejudice of the defendant from the form or contents of such questions or the answers given thereto.
Before proceeding to discuss, generally, the question of homicide we say to you that the failure or refusal of *196the accused person to testify shall not be construed or commented upon as an indication of his guilt; and you are not, therefore, permitted to draw any inference of guilt arising from the failure of the accused to testify in this case.1
This instruction was in accordance with a prayer to that effect bv the defendant’s attorney, based on Section 4215 of the Revised Code of 1915. For a thorough discussion of this question, see Yale Law Journal, Yol. 37, No. 7 (May, 1928) 955. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487325/ | Layton, C. J.,
in charging the jury, in part, said:
Anthony Vilone, the accused, is indicted for murder of the second degree for the killing of one Richard Henley, in the City of Wilmington, on September 17,1933.
The State contends that on Sunday, September 17, 1933, at about two o’clock in the afternoon, one Robert H. Johnson was sitting in his Ford Sedan, which was parked on Scott Street, near Seventh Street, in the City of Wilmington, talking with the deceased, Henley, and another friend, one Collins; that Vilone, the accused, with two other persons, came up to the car of Johnson; that Vilone opened the door and got in the car, and ordered Johnson to drive him to town; that Johnson refused, and, thinking from the acts and conduct of Vilone, that he was in some danger of attack got out of his car and then reached into it and got from under the front seat the starting crank of the automobile ; that the deceased, Henley, was then standing in the street close to the rear end'of the car; that Vilone, the accused, got out of the car, went around the back of it and into the street, with the apparent idea of attacking Johnson, but while in the act of passing Henley, and without excuse or provocation struck him on the jaw with his fist; that as *302a result of that blow Henley was knocked down, and, in falling, his head struck the hard surface of the street; that shortly thereafter he was removed to a hospital where he died the same day. The autopsy performed upon him showed an egg shaped swelling on the back of his head and a fracture of the skull, at or about its base, which fracture was the cause of his death.
It, also, appears from the evidence that there was no wound, bruise, swelling, or contusion on the face of Henley as a result of the blow. It further appears that Vilone, the accused, had been drinking.
On the other hand, Vilone, the accused, contends that he stopped at Johnson’s car, merely to ask for a match, and on receiving a somewhat profane reply to his request answered Johnson in a similar manner. He denies that he got into the car, but contends that Johnson got out of his car, seized the starting crank, and with it in his hand started toward him in a threatening manner and did, in fact, chase him around in front of the car and into the street; that he was backing away from Johnson, toward the rear of the car, when some one called out “look out, Tony”; that he then turned in time to see Henley, the deceased, in the act of striking at him with his fist; that he ducked from the blow and at the same time struck with his left fist at Henley, striking him on the jaw, and that as a result of that blow Henley was knocked down.
Therefore, it is not denied that Vilone did hit the deceased with his fist, from which blow Henley was felled to the street; nor is it denied that Henley died from a fracture of the skull sustained from a result of the blow and fall, but Vilone denies that the blow itself was sufficient to cause a fracture of the skull, and, also, insists that he struck the blow in the necessary defense of his own person.
These are the respective contentions of the State and of the defense, but the evidence bearing upon these conten*303tions is for your exclusive consideration and. determination, subject, only, to the law, as it will be given to you by the court.
In an indictment for murder of the second degree it is possible for the jury to find any one of four verdicts.
First, guilty of murder of the second degree; second, guilty of manslaughter; third, guilty of assault only, under the provisions of the statute; and, fourth, not guilty.
The Court is of the opinion that the evidence before you does not justify a verdict of guilty of murder of the second degree, for the reason that the character of the fatal blow and the circumstances in. which it was inflicted do not evidence that degree and kind of wickedness and malignancy of spirit, nor such depravity of mind, regardless of human life and social duty, from which the necessary element of malice may be fairly inferred or implied.
That, therefore, you will dismiss from your minds the charge of murder of the second degree, and you will confine your consideration to the verdicts which, in the opinion of the court, you are at liberty to render—that is, guilty of manslaughter, guilty of assault, or not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487326/ | Layton, C. J.,
charged the jury, in part, as follows:
It is necessary for the State to prove to your satisfaction beyond a reasonable doubt every material element of the crime of manslaughter. These elements are (1) that the defendant feloniously cut or stabbed the deceased and thereby produced in him a dangerous wound, that is, one calculated to endanger or destroy life, (2) that the deceased, within a year and a day died of the wound, (3) that the offense was committed in New Castle County within two years from the finding of the indictment.
It is a well established rule of the common law that where a person, wilfully and without justifiable cause, inflicts upon another a wound, although not in its nature mortal, yet such as is likely to endanger or destroy life, and death, in fact, ensues therefrom, it is sufficient proof of the crime of murder or manslaughter, as the case may be, and it is no excuse to say that had the deceased taken proper care of himself, he might have recovered. The foundation of this principle is that every one is held bound to contemplate and to be responsible for the natural consequences of his own voluntary act; and if, therefore, a person feloniously and wickedly wounds another in such manner as to jeopardize life, and death ensues as a result thereof, it does not alter the nature of the felonious act, nor diminish its criminality to prove that other causes contributed to the fatal result, as by the deceased’s continued indulgence in intoxicating liquor, irregular living, maltreatment of the wound, or other failure to take proper care of himself ;■ but *344the accused, in such circumstances, will be held guilty ■unless he shall be able to make it clearly appear that the maltreatment of the wound, or the misconduct of the wounded man, and not the wound itself, was the sole cause of death. Where such a defense is offered and relied upon, the burden is upon the accused to establish satisfactorily that such misconduct of the deceased or maltreatment of the wound was the sole cause of death. A different rule would tend to give immunity to criminal acts, and would take away an essential safeguard to human life.
If, therefore, you shall find from the evidence, beyond a reasonable doubt, that the accused did feloniously inflict upon the deceased the wound and that the wound caused his death your verdict should be guilty of manslaughter.
If you shall find, beyond a reasonable doubt, that the accused feloniously inflicted upon the deceased the wound, and that it was one calculated to endanger or destroy life, although not in its nature mortal, and that death followed as a result thereof, your verdict should be guilty of manslaughter, even though it may appear that misconduct of the deceased, or maltreatment of the wound, contributed in producing the death.
If you shall find from the evidence that the accused did not wound the deceased, or if you shall entertain a reasonable doubt thereupon, your verdict should be not guilty.
• If you shall be satisfied, from the evidence, that the accused unlawfully did inflict upon the deceased the wound, but that it was not a dangerous one, that is, one calculated or likely to endanger human life, and that death resulted solely from an independent cause, such as, misconduct of the deceased, or maltreatment of the wound under the provisions of a statute to which your attention will be called, your verdict should be not guilty of manslaughter, but «guilty of assault only, if the evidence shall so warrant.
*345If you shall be satisfied that the accused unlawfully did inflict upon the deceased the wound, but shall entertain a reasonable doubt whether the wound was one calculated to endanger life and whether the death of the deceased resulted therefrom, or from misconduct of the deceased, or maltreatment" of the wound, your verdict should be not guilty of manslaughter, but guilty of assault only if the evidence shall so warrant. State v. Morahan, 7 Penn. (23 Del.) 494, 77 A. 488; 1 Wharton Cr. Law, § 201; 13 R. C. L. 752 30 C. J. 287; Note to Noble v. State of Texas, 22 L. R. A. (N. S.) 841; Commonwealth v. Hackett, 2 Allen (Mass.) 136. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487328/ | Layton, C. J.,
delivering the opinion of the Court:
It is not contended that there was evidence upon which a verdict of manslaughter properly could have been based, nor that the jury were not instructed that they could find, subject to the law and the evidence, a verdict of guilty of manslaughter; but it is argued that the statement made to the jury, that there was no evidence upon which a verdict or verdicts of manslaughter could be founded, was tantamount to a withdrawal of that issue from the consideration by the jury, and, therefore, error on two grounds:
1. That the instruction was in violation of Section 4826 of the Revised Code of 1915, which is,
“A person indicted for murder may be found guilty of either degree of murder, or of manslaughter; * * * and such conviction shall be as effectual as if the indictments had been for the crimes whereof the person indicted shall thus be found guilty.”
2. That the instruction constituted a comment on the facts, prohibited by Section 22, Art. 4 of the Constitution, which reads,
“Judges shall not charge juries with respect to matters of fact, but may state the questions of fact in issue and declare the law.”
With respect to the first contention the argument is that the statute confers upon the jury, in a trial upon an indictment for murder of the first degree, a right as distinguished from a mere power, to render any one of the *527verdicts named in the statute, and necessarily, a right in every defendant in such indictment to have every degree of guilt presented to the jury, regardless of the state of the evidence.
This contention might well be denied, and without much discussion, by saying that the statute, if it needs be construed as contended for, was, in fact, complied with, for the reason that it was distinctly left to the jury whether their verdict should be of murder of either degree or of manslaughter, and that, while the statement that there was no evidence to support a verdict of manslaughter was pointed and strong, it was not a denial of their right, if it be a right, to find such verdict. In other words, the charge was not imperative. See Shaffner v. Com., 72 Pa. 60, 13 Am. Rep. 649.
This view finds support in State v. Brinte, et al., 4 Penn. 551, 58 A. 258, where, there being no claim that the killing was justifiable or excusable homicide, or manslaughter, the jury were told that they might find a verdict of either degree of murder or of manslaughter, but were instructed that it was their duty to determine whether the slaying was of a higher grade than manslaughter, and whether the prisoners were' guilty of murder of the first degree or murder of the second degree. See, also, State v. Miller, et al., 9 Houst. 564, 32 A. 137.
The questions raised, however, are vitally important ones to these prisoners. Furthermore, the public interest in the administration of the criminal law seems to demand that these questions be answered and doubts set at rest insofar as this court may be able to settle those doubts.
The statute in question was enacted in 1826, and is first found, in approximately the same language as it now exists, in Section 10, Ch. 362, Vol. 6, Laws of Delaware.
The division of the crime of murder into two degrees was by Section 2842 of the Code of 1852; and Section 2845 *528of that revision, now Section 4700 of the present Code, is that
“upon the trial of an indictment for murder, the jury, if they find the defendant guilty, shall inquire, and by their verdict ascertain whether he be guilty of murder of the first or second degree.”
These statutes have never been construed although the first of them was in force at the time of the earliest reported homicide case, and what is now Section 4700 very shortly thereafter.
An examination of the reported cases of homicide in 5 Harr., 1 Houst. Cr. Cas., 9 Houst., and 1st and 2nd Marvel, covering a period from 1851 to 1893, shows very clearly that neither statute was regarded as conferring upon the jury a right to consider and determine degrees of guilt re7 gardless of the state of the evidence. In State v. Windsor, 5 Harr. 512, tried in 1851, the defense was insanity, and Judge Harrington did not hesitate to say that the offense was murder, if it was anything at all, and that voluntary and unprovoked homicide, by the use of a deadly weapon, could never be manslaughter of any degree, there being, at that time, statutory degrees of manslaughter.
Likewise in State v. Evans, 1 Marv. 477, 41 A. 136, tried in 1893, where the indictment was for murder by poisoning and the defense an alibi Chief Justice Lore, with equal emphasis, said that the prisoner was either guilty of murder of the first degree, or he must be acquitted, and there was no intermediate ground.
Between these two trials occurred State v. Danby, 1 Houst. Cr. Cas. 166, 167; State v. Goldsborough, 1 Houst. Cr. Cas. 302; State v. Boice, 1 Houst. Cr. Cas. 355; State v. West, 1 Houst. Cr. Cas 371; State v. O’Niel, 1 Houst. Cr. Cas. 468; State v. Thomas, 1 Houst. Cr. Cas. 511, and State v. Reidell, 9 Houst. 470, 14 A. 550. In each of these trials the court did not hesitate to limit the issue to that of guilty as charged or not guilty.
*529State v. Becker, 9 Roust. 411, 33 A. 178, and State v. Miller, 9 Houst. 564, 32 A. Í37, do not point to any contrary view of the statutes. In the first mentioned the facts are meagerly reported. The defense seems to have been defense of his property. The jury were told that their verdict might be guilty of either degree of murder or of manslaughter, but they were distinctly told that the idea prevalent that a jury could do as they please in a capital case was erroneous; that they had the power to do so was true, but they had no right to do so.
In the Miller Case the defense was an alibi, but all the issues were submitted to the jury, although they were told that the case was not one of voluntary or involuntary manslaughter. However, in this case, the proof of the corpus delicti was doubtful, and there was no direct evidence of the manner of killing.
It is true, of course, that during this period, it frequently happened that all the degrees of guilt were submitted to the jury for their determination, and properly so, where the evidence was- purely circumstantial, where there was evidence of an altercation or provocation, intoxication, want of malice, or where the defense was self-defense or defense of property.
So, we have during this long period of time ample evidence, not from direct words but from what actually was done, that the courts of that time did not regard either statute as conferring any right whatsoever upon the jury to decide degrees of guilt as to which there was no evidence.
State v. Cole, 2 Penn. 344, 45 A. 391, seems to mark a departure. There the defense was insanity, yet the court submitted to the jury the questions of murder of either degree and of manslaughter. Likewise in State v. Brinte, et al., supra, where the facts showed a deliberate and premeditated killing, and the defendants produced no evidence.
*530' In State v. Roberts, 2 Boyce 140, 78 A. 305, the evidence was wholly circumstantial, and the defense was an alibi. The court said it was its duty to define the degrees of murder and manslaughter because of the statute. Section 4826, supra. But, in State v. Krakus, 5 Boyce 326, 93 A. 554, where the defendant contended only that he was not guilty of any crime greater than murder of the second degree, the issues were limited to the two degrees of murder. In State v. Prettyman, et al., 6 Boyce 452, 100 A. 476, the defense was an alibi, yet all of the issues were submitted.
Since the Cole Case, with the exception of the Krakus Case, all the degrees of guilt have been submitted to the jury, notwithstanding the defense raised, or the state of the evidence. Sometimes, the court as in the Roberts Case, has referred directly to the statute, more often not. Sometimes the jury has been charged, as in the Becker Case, that the verdict should always be warranted by the evidence, but very frequently this warning has been omitted.
From this examination of the cases, the purpose and meaning of the statute, Section 4826, may be said to be left in doubt, but, we think, the doubt or uncertainty is more apparent than real. If the statutes were meant to confer a right upon the jury to render whatever verdict they might please regardless .of the evidence, then the former court of Oyer and Terminer, during all the years up to 1893, was-entirely and hopelessly in error. It is true that no writ of error lay to that court. It was a court of last resort; but we are wholly unwilling to believe that the able and conscientious judges who composed that court for half a century were so blind to the real meanings and purposes of the statutes, and so indifferent to the rights of persons faced with the - possibility of the death penalty and to the rights of juries who were to decide their fate, as to remove from their consideration issues required by law to be submitted to them. The settled practice of that court is en*531titled to the highest respect. See Daniels v. State, 2 Penn. 586, 48 A. 196, 54 L. R. A. 286.
Nor are we convinced that the courts of a later day, in spite of the statements occurring in charges to juries, which, on their face, seem to point in that direction, meant to hold that in all circumstances, by reason of the statutes all of the degrees of guilt, despite the state of the evidence, must be submitted to the jury.
We are more of the opinion that since the adoption of the present constitution which prohibits comment on the facts, the courts had some apprehension that a limitation of the issues might be regarded as a comment on the facts.
It seems sufficiently clear to us that the wording of the statute, “and such conviction shall be as effectual as if the indictments had been for the crimes whereof the person indicted shall thus be found guilty,” is so indicative of its intent and purpose as to render construction unnecessary.
Anciently, where the killing was proved, but the circumstance showed it to have been a misfortune, or to have arisen in self-defense, the jury found the special matter, and left the court to judge of its effect. 3 Chitty Cr. Law 739. And the English courts have rejected verdicts of manslaughter where the evidence clearly showed the offense to be murder. 1 Russell Crimes 773. We are of the opinion that the purpose of the statute was to enable the jury, in case the proof was not sufficient to convict of the particular crime charged, but was sufficient to convict of a lesser offense, to find the defendant guilty of the lesser offense necessarily included in the one charged.
The purpose of the statute was not to invest juries in criminal cases with the right arbitrarily to disregard the evidence and the principles of law applicable to the accusation. From which it follows that the statute confers no right upon a defendant to have submitted to the jury an issue as to which there is no supporting evidence. A de*532fendant has no constitutional or statutory right to a compromise verdict, nor should such verdicts be encouraged.
And we think the purpose of the statute, Section 4700 of the Revised Code of 1915, was to prevent the accused from being sentenced to death without a special finding of the jury of murder of the first degree, and was not to give to the jury a discretionary right to find a degree of guilt regardless of the evidence.
Limitation of space forbids a review of the authorities. The cases cited, decided upon statutes substantially like our own, are convincing. Sparf v. U. S., 156 O. S. 51, 715, 15 S. Ct. 273, 39 L. Ed. 343; State v. Saccoccio, 50 R. I. 356, 147 A. 878; State v. Cianfione, 98 Conn. 454, 120 A. 347; State v. Marx, 78 Conn. 18, 60 A. 690; State v. Chapman, 103 Conn. 453, 130 A. 899; State v. Young, 67 N. J. Law 223, 51 A. 939; State v. Zeller, 77 N. J. Law 619, 73 A. 498; Carr v. State, 45 Fla. 11, 34 So. 892; People v. King, 27 Cal. 507, 87 Am. Dec. 95; Clark v. State, 169 Ark. 717, 276 S. W. 849, 855; State v. Birbiglia, 149 La. 4, 88 So. 533; State v. Spivey, 151 N. C. 676, 65 S. E. 995, overruling State v. Gadberry, 117 N. C. 811, 23 S. E. All; Demato v. People, 49 Colo. 147, 111 P. 703, 35 L. R. A. (N. S.) 621, Ann. Cas. 1912A, 783; State v. Flory, 203 Iowa 918, 210 N. W. 961; Bandy v. State, 102 Ohio St. 384, 131 N. E. 499, 21 A. L. R. 594; Thornton v. Conn., 24 Grat. (65 Va.) 657; People v. Repke, 103 Mich. 459, 61 N. W. 861; State v. McPhail, 39 Wash. 199, 81 P. 683; Note 21 A. L. R. 603; 30 C. J. 398, 414.
A court must proceed circumspectly in refusing to submit an alleged issue to the jury, or in stating that there is no testimony in support thereof. Such action demands a high degree of caution and judgment. Where there is some evidence, even if it be only that of the defendant himself, or if some fact or circumstance appears from which an inference reasonably and fairly may be drawn,
*533_ pointing to a degree of guilt lower than that specifically charged, the weight of the testimony is for the jury, and it would be error to refuse to submit the issue. Likewise where there is no eye witness to the killing and the evidence is purely circumstantial, a situation is presented which may demand the submission of the several degrees of guilt.
But where there is no evidence, and no fact or circumstance from which an inference justly may be deduced, tending to prove an offense of lesser degree than the one specifically charged, the court commits no error in withdrawing from the jury’s consideration an alleged issue with respect to which there is no supporting evidence.
Here the fact, manner and purpose of killing were amply proved. There was no evidence tending in the slightest degree to show provocation. By the confessions of the several prisoners and by direct testimony the killing was deliberate and wilful murder, and nothing else. The charge was more favorable to the prisoners than was justified by the testimony, and more than they properly could have requested.
The second contention is, that the statement of the court that there was no evidence to support a verdict of manslaughter was a comment on the facts in violation of the constitutional prohibition.
By the very language of the Constitution judges “may state the questions of fact in issue,” and we think this necessarily means that supposed issues, but with respect to which there is no supporting evidence, may be withdrawn from the jury. It is the duty of the court to render all proper aid to the jury by clarifying the issues; and frequently the best method of clarification is to inform the jury that certain alleged issues are not supported by any *534evidence, and, hence, are not issues at all, for, in such case, the court does but state the law.
In Truxton v. Fait & Slagle Co., 1 Penn. 483, 42 A. 431, 437, 73 Am. St. Rep. 81, the Supreme Court said,
“And we think that a statement by a judge, in charging the jury, of matters of fact which are uncontroverted and not in dispute nor in issue, where such statement may be material for the proper elucidation or application of the legal principles involved, would not be in conflict with the provisions of Section 22 of Article 4 of our lately amended constitution.”
In State v. McPhail, 39 Wash. 199, 81 P. 683, 684, supra, upon this question, the Court said,
“It seems to us that counsel labor under an entire misapprehension as to the purpose and effect of this constitutional provision. It relates only to the manner of conducting, trials and submitting questions of fact to juries, and does not limit the power of the courts in the determination of questions of law. In this as in all other jurisdictions the court must determine the issues to be submitted to the jury from the pleadings and proofs, and in making such determination it decides matters of law, and not matters of fact. If the court improperly withdraws an issue from the consideration of the jury, its ruling is erroneous, not because it is a comment on the facts, or a charge with respect to matters of fact, in violation of the provision quoted, but because it deprives the parties of a trial by jury, in violation of Section 21 or Section 22 of Article 1 of the Constitution, which provide that the right of trial by jury shall remain inviolate. * * * The provision upon which counsel rely applies to both civil and criminal cases, and, if they are correct in their contention, this court has been in error throughout its entire existence in holding that whether there is any testimony to support a cause of action or a defense presents a question of law for the determination of the court, and not a question of fact for the jury. The position taken by counsel is that the trial court must submit every issue raised by the pleadings to the jury, regardless of the state of the testimony or the absence of all testimony. This contention finds no support in our Constitution or elsewhere, and cannot prevail.”
In Clark v. State, supra, in disposing of a contention that an instruction to the jury that they must convict or acquit of murder in the first degree and no other offense, was a charge upon the facts, the court said,
“Under the provisions of our Constitution above referred to, as well as under the common law, it is the duty of the court to instruct *535the jury upon the law, and it is the duty of the jury to accept the ruling and be guided by it. As stated in Jones v. State [52 Ark. 345, 12 S. W. 704], supra, the trial court should in no case indicate an opinion as to what the facts establish; but in properly giving the law the court must of necessity determine whether there is any evidence'at all justifying a particular instruction. The right and power of juries in criminal cases should not be confused.”
In People v. King, supra, it was said,
“On the other hand, if there was a total absence of all testimony as to such facts and circumstances as would under the law, reduce the offense from murder to manslaughter, and the instruction is to be understood as declaring such to be the case, then it was not erroneous, because Judges, although not allowed to charge juries with respect to matters of fact may state the testimony and declare the law. Const. Art. 6, § 17.”
Long ago, in State v. Jeandell, et al., 5 Harr. 475, it was said that wherever a question depends on weight of evidence, the court uniformly submits it to the jury. If no evidence be offered on the point, the Court decides it; for there is nothing to leave to the jury.
A comment or charge on the facts is some expression by the court directly or indirectly conveying to the jury the court’s estimation of the truth, falsity or weight of testimony in relation to a matter at issue. Where there is a total absence of evidence upon a matter, and no fact or circumstance from which a legitimate inference can be drawn in relation to that matter, there can be no issue, for there is no question of fact for the jury to decide. In such case a statement by the court in relation to the matter that there is no issue for the reason that there is no evidence to support it, is not a comment on facts.
The motion in arrest of judgment and for a new trial is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487332/ | Layton, C. J.,
charging the jury:
John M. Phillips, the accused, is charged in the indictment before you with the crime of manslaughter arising out of the death of one Grover Brown Billings on June 16, 1936, at a place called Ruth’s place near Harrington in this county.
The State contends that in the early morning of June 16, last, the accused, Billings and others were engaged in playing stud poker at Ruth’s place, and that an argument arose between the two which resulted in Billings, who had charge of game, telling the accused to go away and stay away; that the accused went into the kitchen of the place and later went outside to go home; that outside of this place a fight started between the accused and Billings and that Billings struck Phillips and they clinched; that the accused had his left arm around Billing’s neck with his right arm free while Billings had Phillips around the body or legs as if in wrestling; that Phillips made two thrusts at Billings *547with his free arm, striking him apparently in the chest, and then threw something to a companion named White, saying, “Roy catch this,” and he, White, threw the object, which was a knife, from him in a northerly direction; that they then separated, and Billings took two or three steps, and fell in the doorway of this place; that then it was discovered that he had been wounded in the chest; that he died soon after the arrival of the doctor; that the cause of death was found to be a puncture of the heart, the wound being caused by some sharp instrument penetrating upwards into the apex of the heart; that another wound was found on the left hip and that .subsequently the knife was found in the direction in which White threw the knife.
The State contends, therefore, that the accused is guilty of manslaughter for the reason that he stabbed and killed Billings in heat of blood, while being engaged in a fight with him.
The defendant does not deny the facts and circumstances as related by the witnesses on the part of the State up to the time Phillips left the kitchen, but he contends that while engaged in the game Billings had a knife in front of him on the table; that just as he was leaving the kitchen he, Phillips, took out his penknife and opened it with his hand behind him only to bluff Billings, not to attack him; that Billings was outside and at once struck at him; that he with the point of the knife toward himself made two thrusts at Billings, but did not hit him; that Billings then rushed at him and struck him on the head and they clinched; and that then he threw the knife away to avoid injuring Billings. He contends that he did not consciously and intentionally stab Billings with the knife, but that if Billings was stabbed it was by accident and misadventure caused by Billings’ rushing in upon him and not by his own voluntary, intentional act.
*548The defendant also contends that the knife that was found and which is in evidence was not his knife.
The defense offered is that Billings came to his death by misadventure and that he, Phillips, is guilty of no offense whatever.
These, gentlemen, are the respective contentions of the State and of the accused stated very shortly. They are stated as contentions only and not as to indicate any opinion on the part of the Court nor to govern your own recollection of the testimony of the witnesses. You are the sole judges of the testimony, and it is your -recollection of the evidence which must control you in your deliberations and decisions.
The respective contentions of the State and of the defense give rise to several issues which will be explained to you.
Manslaughter, the offense which is charged in the indictment, is the unlawful killing of one human being by another without malice, express or implied. To explain the offense to you, it will be necessary, very shortly, to explain also what constitutes murder in the first and second degrees.
The fundamental differences between murder and manslaughter is that to constitute murder there must be malice, while in manslaughter there is no malice.
Malice is not easy to define, but you may regard it as a wickedness of mind or spirit. In murder of the first degree the malice must be express. This is usually shown by something the accused did or said before doing the fatal act which shows that he did it with a formed purpose or design to take life. If it be shown that one kills another as-a result of a deliberate intention to take life, the wickedness *549of spirit, or, in other words, the malice is called actual or express malice.
If there is no deliberate intention or formed design to kill, yet where the fatal act is done voluntarily and cruelly, and under circumstances which offer no excuse or mitigation, the wickedness of spirit or the malice is said to be implied, and the killing is murder of the second degree.
We are not concerned with murder of either degree. The State does not contend that the accused killed Billings with malice either express or implied. It does contend that he killed Billings by stabbing him while he was engaged in a fight with him and after the deceased had struck him, and that he stabbed him while in a transport of passion aroused by the blow which Billings had given him.
The common example of voluntary manslaughter is where upon a sudden quarrel two persons fight and one of them kills the other, or where one person greatly provokes the other as by some personal violence, and the other immediately kills him. In such case, the law does not entirely excuse the killer, but because of the frailty of humanity, it regards the one who kills in an outburst of passion aroused by adequate provocation guilty of a lesser offense than murder, because the killing is not done with malice. The most peaceably disposed person may be so provoked by a blow or other personal violence as to lose control of himself, and while in such condition may kill another. The killing in such circumstances is unlawful, but it is not a malicious killing.
So, gentlemen, voluntary manslaughter is where one person kills another without malice in his heart or mind, as where one in a sudden fight and in the heat of blood or in a gust of passion, without time for reflection or for the passions to cool, kills another; and it is the contention of *550the State that the evidence shows that the accused did stab and kill the deceased while in such a frenzy of mind or transport of passion, aroused by Billings’ striking him, as to render him for the moment utterly deaf to the voice of reason. The State contends that while the killing was intentional it was not done with malice, for it admits that the provocation was serious enough to deprive the killing of any malicious character.
If you shall find beyond a reasonable doubt, therefore, that the accused did kill Billings while in such a gust of passion aroused by being struck by Billings, your verdict should be guilty as charged — that is, guilty of manslaughter.
The defendant, on the other hand, does not admit that he stabbed Billings at all. He contends that if the knife which he had in his hand penetrated into the body of Billings and thereby caused his death, it was not through his voluntary or conscious act, and that the death of Billings was by accident or misadventure.
Killing by misadventure is a kind of homicide which the law terms excusable homicide. This form of homicide occurs where one engaged in doing a lawful act, without intention to do harm and with proper precaution to avoid danger, unfortunately kills another.
So there are three things necessary to constitute the defense of homicide by misadventure: First, there must have been no intention to harm; second, proper precautions must have been taken to avoid doing harm; and, third, the act from which death resulted must have been a lawful act.
The accused contends that he committed no unlawful act and that he held the knife in his hand “only to bluff Billings,” as he expressed it, and that if his knife did enter into Billings’ body it was not by his design or intention, but *551was caused by Billings’ rushing in upon him and clinching with him and not through any act or carelessness of his own.'
To justify a verdict of not guilty on the ground of accident or misadventure, it must appear to the jury from the testimony that the death was the unfortunate result of an act perfectly lawful in itself, and that such act was done with reasonable care for the lives and persons of others. Whether the defense of death by accident is made out depends in part upon the lawfulness of the act of the accused who sets up such defense.
Homicide by misadventure is an unintentional act as distinguished from homicide in self-defense, which is an affirmative, positive, and intentional act.
In the case before you the defense of self-defense is not relied upon, and ordinarily, the law of self-defense is not applicable in the case of a killing resulting from an act which was accidental and unintentional; but the principles of self-defense miay be involved, not for the purpose of establishing self-defense, but only tó determine whether the accused was or was not at the time engaged in a lawful act. In such case the right but not the law of self-defense is invoked.
Now, what we are about to say is not to be considered as a charge upon the law of self-defense, but only to guide you in your determination from the evidence whether the accused at the time was acting lawfully or unlawfully.
Where one is attacked by another it is his duty to retreat or to evade the fight if he can conveniently and with reasonable safety do so. This is especially true where the attack upon him is not made with a deadly weapon. Nor ordinarily may one use a deadly weapon to repel a non-felonious attack, but if the circumstances are such that one *552cannot conveniently and with reasonable safety evade an attack made upon him, it is not unlawful to repel an unlawful attack, although the attack be not a deadly one; and if in doing so the assailant is killed unintentionally and without the use of excessive force or means, it is a killing while doing a lawful act, and it is excusable.
If you shall be satisfied, therefore, that the accused when he went outside from the kitchen had no intention to enter into a fight with Billings and that he had the knife only to deter a possible attack upon himself, that Billings ■ without provocation did attack him, that the circumstances were such that he could not conveniently escape or avoid the attack, that he did not intentionally or consciously stab or wound Billings — as, for example, if the wound was caused by some instinctive action on his part, that the accused did not use the knife in a careless or reckless manner, but with such care as a reasonably prudent person would use under such circumstances, and that the wound was caused by Billings’ rushing in upon the accused and clinching with him, then the death was accidental or, as it is called, a death by misadventure, and your verdict should be not guilty.
But, gentlemen, even if the cutting or stabbing was not intentional, yet, if it was done where the defendant was acting unlawfully or carelessly or negligently, the death cannot be said to be accidental, and this requires us to define to you an offense known as involuntary manslaughter.
Involuntary manslaughter is where a person in committing an unlawful act, not felonious or tending to great bodily harm, or in committing a lawful act without proper precaution, unintentionally or undesignedly kills another.
So if you shall be satisfied beyond a reasonable *553doubt that the accused did stab the deceased while acting in an unlawful manner, as, for example, if he made no effort to evade the fight, although he could have done so with reasonable convenience and safety to himself, or if he entered into the combat willingly and while so engaged, although not intending to kill the deceased, did stab him; or if you shall be satisfied beyond a reasonable doubt that the accused while acting in a lawful manner — that is, if the combat was not entered into willingly by him, or if he was not able to evade it with reasonable convenience or safety to himself, although he did not intend to kill, yet used his knife without that care and caution which a reasonably prudent person would exercise in a like situation, or althoúgh not intending to kill used the knife with excessive force and thereby stabbed and killed the deceased, in such cases the killing may not be said to be accidental, and your verdict should be guilty of manslaughter.
There is another possible verdict under an indictment such as this. By a statute of this state it is provided that upon the trial of any person for a felony not capital, where the crime charged shall include an assault against a person, the jury may acquit of the felony and find a verdict of assault only if the evidence shall warrant such finding.
(The Court here charged on good reputation, conflict of evidence, presumption of innocence and reasonable doubt.) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487333/ | Layton, C. J.,
delivering the opinion of the Court:
The objection to further cross-examination of the witness for impeachment purposes and the motion to strike out his answers could have been sustained on the ground that the record of the conviction was not produced, and certainly, upon the ground that there was, in fact, no conviction of the witness as no sentence had been imposed. 70 C. J. 856; 1 Wigmore Ev., § 521; 4 Jones Ev., § 716; Com. v. Gorham, 99 Mass. 420; State ex rel. Owens v. Barnes, 24 Fla. 153, 4 So. 560; Blaufus v. People, 69 N. Y. 107, 25 Am. *556Rep. 148; State v. Townley, 147 Mo. 205, 48 S. W. 833; Faunce v. People, 51 Ill. 311; Dial v. Commonwealth, 142 Ky. 32, 133 S. W. 976; Martin v. State, 30 Okl. Cr. 49, 234 P. 795.
The court ruled, however, that it must judge of the felony, and that the credibility of a witness may be impeached only by proof of conviction of an offense recognized as a felony by the laws of this state.
It cannot be said with certainty what the practice has been. Certainly witnesses have been asked if they have not been convicted of felonies in other jurisdictions, most frequently perhaps, the question naming the offense which was a felony here. No doubt the general question has been asked without identifying the offense, but so far as we are aware, there was no objection and the question now to be answered has never been raised, debated nor decided.
The statute permits the credibility of a witness to be attacked not by proof of conviction, or any crime, or infamous crime, but the attack is restricted to convictions of felonies.
We have no statutory or decisional definition of the term “felony” and resort must be had to the common law. State v. Murphy, 17 R. I. 698, 24 A. 473, 16 L. R. A. 550. There it was used to designate such serious offenses as were punishable by death, or by forfeiture of the lands or goods of the offender. Bannon v. U. S., 156 U. S. 464, 15 S. Ct. 467, 39 L. Ed. 494.
This definition, if it can be called a definition, is mainly historical. The term is vague and unsatisfactory, and the observation is not far wrong that no lawyer would undertake to tell what a felony is, otherwise than by enumerating the various kinds of offenses which are so called. 1 Wharton Cr. Law (11th Ed.) 36, note.
*557At common law there were certain recognized felonies, murder, manslaughter, arson, burglary, robbery, larceny, rape, sodomy, and mayhem. Statutes, running from the earliest period, created new felonies.
So, in this country, until recently, the common law classification obtained. The principal felonies were received as they originally existed, and their number increased as the exigencies of society prompted. 1 Wharton, supra, 38.
The statute in question was enacted in 1859, and undoubtedly the legislature employed the word as meaning a crime known to the common law as a felony or which has been made a felony by. statute of this state.
Conspiracy at common law was a misdemeanor, 2 Wharton C. L. (11th Ed.) 1739. It is a misdemeanor in this state. State v. Effler, 2 Boyce 92, 78 A. 411.
The witness pleaded guilty to an indictment charging conspiracy. By Federal statute the offense was a felony. If the witness had been convicted of a similar offense in this state, the conviction could not have been offered to affect his credibility, the offense not being a felony. See State v. Burton, 2 Marv. 446, 43 A. 254; State v. Fisher, 1 Penn. 303, 41 A. 208; State v. Powell, 5 Penn. 24, 61 A. 966; State v. Grant, 3 W. W. Harr. (33 Del.) 195, 133 A. 790.
We do not intend to express approval of a system by which the theft of a small coin is a felony, while conspiracy to rob a bank is but a misdemeanor, but the legislature has declared a policy which does not regard the conviction of an offense known to our laws as a misdemeanor sufficient to impeach the credit of a witness, and we are unable to see how, under that policy, the same offense becomes sufficient simply because it was committed in a jurisdiction where it is a felony.
*558It may not be amiss to express the hope that the legislature may find it desirable to amend the law so that the credit of a witness may be impeached by proof of conviction of an infamous crime, but, clearly, it is a matter for the legislature not for the courts.
By the Constitution of the State, Article 5, § 2, it is provided that no one convicted of a crime deemed by law felony shall enjoy the right of an elector. It will, perhaps, be agreed that the disfranchisement of a citizen by reason of conviction of crime must be dependent upon whether the crime is a felony under our law, for the state will undoubtedly determine the right of its citizens to vote in accordance with its own standards. It is difficult to see why the credibility of a witness should be judged by the standard of another jurisdiction.
In this state the offense of carrying concealed a deadly weapon is a misdemeanor, and in State v. Powell, supra, the record of a conviction of such offense was not admitted to affect credibility. We have no doubt that this offense is a felony under the laws of other jurisdictions, and if the contention of the defendant is sound, the result would be that, if a witness has been convicted of this offense both in this state and elsewhere where the offense is a felony, his credibility could be attacked by the proof of the conviction elsewhere, while the conviction here would not be admissible for the same purpose.
The statement of the contention furnishes its refutation.
The decisions draw a distinction between competency and credibility. With respect to conviction of a crime in another jurisdiction as affecting competency, there is a difference of opinion. In Commonwealth v. Green, 17 Mass. 515, it was held that conviction of an infamous crime in
*559another jurisdiction did not render the witness incompetent, on the ground that penal laws will not reach from one jurisdiction into another; but the court intimated that the conviction abroad might be shown to affect credibility. In Sims v. Sims, 75 N. Y. 466, 467, there was a like ruling, but it was doubted whether the fact of conviction could be received for the purpose of impeachment. In Chase v. Blodgett, 10 N. H. 22, it was held that a conviction for a crime in another state was not admissible for the purpose of impeachment, but that if the conviction elsewhere would disqualify the witness there, and if the offense, if committed in New Hampshire would operate as a disqualification, the witness should be excluded. To the same effect is State v. Candler, 10 N. C. (3 Hawks) 393.
These decisions, however, do not touch the precise point involved here, and, indeed, none of the authorities cited is directly in point.
In Commonwealth v. Knapp, 9 Pick. (Mass.) 496, 20 Am. Dec. 491, there is nothing to suggest other than that the crime of which the witness was convicted in Maine was likewise an infamous crime in Massachusetts. The same comment may be made upon State v. Foxton, 166 Iowa 181, 147 N. W. 347, 52 L. R. A. (N. S.) 919, Ann. Cas. 1916 E, 727. In Rittenberg v. Smith, 214 Mass. 343, 101 N. E. 989, 47 L. R. A. (N. S.) 215, the statute permitted the conviction of a crime to be shown to affect credibility, and it was held that conviction elsewhere of fraudulent concealment of property from a trustee in bankruptcy was admissible. In State v. Foley, 15 Nev. 64, 37 Am. Rep. 458, the convictions were for burglary and for grand larceny. The question was one of competency, not credibility. The court ranged itself with Chase v. Blodgett, supra. In Kurtz v. Farrington, 104 Conn. 257, 132 A. 540, 48 A. L. R. 259, strongly relied upon by the defendant, the offer of proof of the conviction *560elsewhere was excluded. The Connecticut statute, as construed, permitted conviction of an infamous crime ■ to be shown to affect credibility. An infamous crime had been defined to be one which involved moral turpitude and for which the penalty might be imprisonment for six months or more. The offer of proof was denied not because the offense did not involve moral turpitude, it being distinctly held that it did, but because the offense, not being punishable by imprisonment where committed, did not have the second element required in Connecticut, imprisonment for six months or more.
State v. Grant, 3 W. W. Harr. (33 Del.) 195, 133 A. 790, is not opposed. There it was held that a witness may be asked if he had been convicted of a felony, and that if he admits the conviction, the record, usually, is considered unnecessary. It was not held that if the witness denies the fact, or if, from his answer, it is doubtful whether the conviction was for a felony, it is not necessary to produce the record of the conviction.
Felonies are offenses which were recognized as such at common law, or which have been declared to be felonies by our statutes. Under Section 4214 the credibility of witnesses may be attacked by proof of conviction of a crime deemed a felony by our law, no matter where committed.
The m,otion in arrest of judgment and for a new trial is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487334/ | Layton, C. J.,
delivering the opinion of the Court:
In the instructions to the jury, after stating the contentions of the defendant, it was said:
“These contentions of the defendant, if found to be sustained by the evidence, do not amount to a defense to the charges contained in the indictment; but, nevertheless, it is for you to determine from all the facts and circumstances before you whether the State has established the guilt of the defendant beyond a reasonable doubt under the law as it will be explained to you.”
Thereafter, upon the court’s own motion, the jury were recalled. Their attention was directed specifically to the above statement, and they were told to disregard it entirely, for the reason that it might be considered as a charge on the facts. The Court then proceeded to say:
“In a case like the present, under this sort of an indictment, the jury are entitled to consider all of the-facts and circumstances existing at the time of the fatal occurrence to determine whether or not the omission of duty on the part of the defendant was such as is to be considered culpable negligence. By ‘culpable negligence’ I mean such negligence as is regarded as incompatible with human life and safety.”
The defendant, however, insists that a new trial should be granted for the reason that the first instruction caused prejudice and injury which were not removed by the subsequent action of the Court.
*8In answer to this contention it is sufficient to say that the court has the power, and it is its duty to withdraw or to correct its instructions to the jury if, upon reflection, it considers that an erroneous instruction has been given. 16 C. J. 1055; State v. Derry, 118 Me. 431, 108 A. 568, where it was said that this power in the court is beyond dispute; State v. Hood, 63 W. Va. 182, 59 S. E. 971, 15 L. R. A. (N. S.) 448, 129 Am. St. Rep. 964, where the court said that it must assume that the jury can understand the direction of the judge, and that they have the capacity to remain uninfluenced by an instruction afterwards eliminated.
In some circumstances there may be error in instructions of such character that it is impossible to correct its harmful effect. It may readily be conceived that where the evidence is in close conflict, or of an intricate or circumstantial character, from which reasonable men may draw different inferences, an expression of opinion by the court, even though withdrawn, may well be considered as having caused incurable injury for the reason that the opinion has become firmly lodged in the minds of the jury, and has swayed them.
But, the evidence on the part of the State was not controverted. The defendant admitted a service of many years as a crossing watchman, and a service of several years at the crossing in question. There was no suggestion that he did not understand his duties, or that they were of a difficult character. He admitted that he did not put into operation any of the safety devices provided for the protection of travelers on the highway. Whether he went to sleep as he admits he told the police, or whether he was awake, but looking in one direction because of his belief that the next train would approach from the east, makes no difference. He admitted that a train approaching from *9the west, at the rate of speed ordinarily maintained, was in sight for one minute before reaching the crossing. When asked why he did not see the train, he replied that he was looking the other way because he was expecting a train from the east for the reason that the telephone bell rang in his watchbox indicating as he said, a call from one signal tower to another which was usually followed by a train from the east. And further, he testified, and his statement is illuminating:
“Of course, as a general rule, and not being a custom to have two electrics right close together, I didn’t see this train until it was on me.”
He testified to the heavy vehicular traffic and to the noise made by trucks on the highway. This, of course, may have prevented his . hearing the approach of the train, but it in nowise excused his failure to keep a lookout for the approach of trains from either direction.
His own summing up of the cause of the tragedy best tells the story. He testified:
“Well it is just the case of an accident, that is all. It is only one minute, practically speaking, from the time he was in sight until he was on the crossing and in that minute I happened to be looking the other way. That is the whole story, to be truthful about it.”
We may conceive of a crossing where, its watchman is immersed in such difficulties because of the frequent passage of trains, or the inability to see the approach of trains, or from other conditions, that an omission of duty may be excusable in the sense that it is not to be punished criminally, for the reason that a man of ordinary care, activity and quickness of perception cannot, because of human limitations, efficiently accomplish that which his employment demands of him. But the evidence here shows no such difficulties. The passage of trains was infrequent, the next preceding train having passed the crossing over one-half hour before the fatal collision. There was no reason why if he could not rely upon his sense of hearing, he could not *10see. He did not see because he did not look. He did not look, if his testimony on the witness stand is to be believed, because of an entirely unreasonable belief that the next train would approach from the east, a belief which he had no right to entertain. His employment was to keep a lookout for the approach of trains from either direction, not to indulge in speculation that a train would approach from one direction.
The defendant offered no defense in point of fact or of law, and while the instruction first given, although precisely true, may be regarded as an expression of opinion on the facts, we are agreed that the subsequent action of the court prevented prejudicial and injurious consequences, for reasonable men could have found no other verdict under the evidence. The omission of duty was more than mere negligence. It was conduct incompatible with human life and safety, and there is nothing in the record to mitigate, alleviate or excuse the failure to observe the approach of the train to the crossing, and to give the warnings required of him by his employment.
The court declined to charge the jury, as requested, that if the defendant, acting honestly on reasonable grounds, made a mistake as to the nature of his duty, his omission was not criminal or felonious, for the reason that the facts did not justify the charge. There was no evidence of a mere mistake as to the nature of his duties, and no basis for a reasonable man to believe that the next train would approach from the east, and there was nothing to suggest that performance of duty was impossible or even difficult. See Reg. v. Trainer, 4 F. & F. 105, 176 Reprint 488; Reg. v. Elliott, 16 Cox 710; Reg. v. Pargeter, 3 Cox 191.
The defendant’s next contention is that the charge' to the jury eliminated from their field of consideration any question of the degree of negligence. It is said that the ■ *11jury must have understood from the charge that any default must lead to criminal liability. This contention seems to be based upon the fact that the charge did not define negligence.
In defining involuntary manslaughter, this was said generally in an effort to make clear to the jury the nature of the charge:
_ “Involuntary manslaughter, on the other hand, is where the killing is unintentional and undesigned, and these unintentional or undesigned killings, at the same time unlawful killings, fall generally into two classes: first, where the death results from the doing of an unlawful act, not in itself amounting to a felony or tending to do great bodily harm; and second, in cases of negligence, where although there was no intent or purpose to kill, there was the doing or the omission to do some act, which doing or omission was attended with circumstances endangering life. It is the last form or class of involuntary homicide which is charged in this indictment, and the State contends, under the law, that the defendant is guilty of manslaughter of the involuntary kind, because, as it contends, the defendant negligently and carelessly omitted to do those things which were especially charged upon him to do and upon which the public generally, and the deceased, in particular, had the right to rely, whereby those using the highway at the time, including, of course, the deceased, were endangered.”
This part of the charge informed the jury, and we think sufficiently, of the nature and character of involuntary manslaughter in general, and in particular, of the kind of involuntary manslaughter charged against the defendant.
The charge then proceeded:
“It is not all acts of negligence, whether acts of omissions or acts of commission that will constitute crime. Sometimes the courts have said that the negligence must be culpable or gross negligence. Others have said that the negligence must be such as to show a reckless disregard of the safety of others, or a conscious indifference to the consequences. All such expressions mean only that in order to hold one a criminal for his negligent conduct, his negligence must be something more than is required to hold him responsible in a civil proceeding.”
“To warrant a conviction of involuntary manslaughter arising out of a negligent omission of duty, it must appear that a death was not improbable under the circumstances, or, to express the same thought in other language, it must appear that the omission of duty was one likely to cause' death. In other words, the degree of *12care to be exercised must be proportionate to the probability of danger to life impending from the act of omission.”
“It is incumbent upon the State to satisfy you beyond a reasonable doubt of four things: First, that by virtue of his employment as a crossing watchman by the railroad in question the defendant, at the time and place, was charged with a specific legal duty to the deceased 'as a traveler on the highway;
“Second, that he failed and neglected to perform that duty;
“Third, that his failure, neglect or omission of duty evinced such a degree of carelessness as was incompatible with human life, or in other words, the omission of duty was in the circumstances likely to cause death;
“Fourth, that the failure, neglect or omission of duty was the proximate or efficient cause of the death of the deceased.”
The defendant urges that negligence in the. abstract should have been defined, for the jury was not told what negligence is required to make one responsible in a civil proceeding. It is said that the uninformed lay mind could only conclude that where the possibility of death exists any default suffices.
This interpretation by counsel is not justified by the language of the charge. It is true that the jury were not told what negligence is required to hold one responsible in a civil proceeding, but they were not told that, if any possibility of death existed in the circumstances, any default would be criminal negligence, nor could such inference be drawn legitimately from the language used.
The instruction was that the degree of care to be exercised must be proportionate to the probability of danger to life impending from the act of omission, and that to warrant a conviction of manslaughter arising out of a negligent omission of duty it must appear that the omission was likely to cause death; and, specifically and particularly, they were instructed that the omission of duty must be such as to evince that degree of carelessness as was incompatible with human life, or was such as was likely to cause death. See State v. Harrison, 107 N. J. Law 213, 152 A. 867.
*13That one could be held criminally responsible for an omission of duty where a mere possibility of death existed was not suggested. Nor do we think that that failure to point out to the jury what degree of negligence is required to render one responsible in a civil proceeding made the explanation of criminal negligence unintelligible.
The authorities cited by the defendant in nowise, as we think, support his view of the charge here. Nothing need be said with respect to People v. Gardiner, 303 Ill. 204, 135 N. E. 422, 423, and State v. Williams, 131 S. C. 294, 127 S. E. 264. A casual reading of the cases is sufficient to exclude them from consideration.
State v. Custer, 129 Kan. 381, 282 P. 1071, 67 A. L. R. 909, and People v. Angelo, 219 App. Div. 646, 221 N. Y. S. 47, were indictments under statutes having as was said, catch-all provisions that “every other killing * * * by the * * * culpable negligence of another, which would be manslaughter at the common law * * * shall be deemed manslaughter in the fourth degree." Rev. St. Kan. 1923, 21—420.
In State v. Custer, culpable negligence was defined to be the failure to do something which a reasonable and ordinarily prudent man would do, or the doing of something which such a man would not do, under the circumstances.
The reviewing court well said that the defendant was tried for culpable negligence, and not for manslaughter, and the theory was that if he was simply negligent he would be guilty.
In People v. Angelo, 219 App. Div. 646, 221 N. Y. S. 47, the instruction was so phrased that the jury might have understood the court to suggest that slight negligence and culpable negligence meant the same thing.
In Rex v. Bateman, 28 Cox 33, the defendant, a physi*14clan, was indicted for manslaughter for having caused the death of a patient whom, he was attending in child birth. It was his duty, of course, to exercise that degree of care which was, in his profession, fair and reasonable. The judge made use of the terms “gross negligence,” “grave, wicked neglect,” and “culpable neglect,” without further explanation; and so it was that the Lord Chief Justice said that if these adjectives had been put aside, the summing up amounted to a direction to the jury that they must draw the line between mistake and error on the one hand and carelessness and incompetence on the other.
The conviction was set aside for failure of proof, not for misdirection, for it was distinctly said that as there was frequent use of some of the adjectives which have always been employed in explaining criminal negligence, looking at the charge as a whole, there was no misdirection. The court proceeded to say that the explanation of criminal negligence to a jury should not be a mere question of epithets, and that the issue is felony or no felony, not negligence or no negligence.
Where the explanation of the kind of negligence which is denounced as a crime is confined to prefixing to the word epithets, such as “culpable,” or “gross,” or “wicked,” it may be readily admitted that the layman is not informed at all, for he does not know the significance given in law to the adjectives. It may be admitted also that-where the charge amounts to a direction to the jury that they must draw the line between mistake or error of judgment on the one hand and carelessness or incompetence on the other hand, it is not adequate on a trial of an indictment for manslaughter.
In the instant case, however, while the explanation of the accusation may well be considered to fall short of that excellence which the critical mind demands, the explanation of criminal negligence was not allowed to depend upon *15epithets, nor was the jury instructed to differentiate between mistake or error of judgment and mere carelessness or incompetence', nor was it suggested that slight negligence meant the same thing as culpable negligence.
It was made sufficiently clear to the jury that an element of the crime of involuntary manslaughter, such as was charged in the indictment, was an omission of duty in circumstances evincing such a degree of carelessness as was likely to cause death, and that the State had to prove that element beyond a reasonable doubt.
It must be remembered that there was no dispute as to the defendant’s duties, or as to his omissions óf duty. It was not that the defendant did something but not all that he should have done. It was not a case of mistake or error of judgment under stress of circumstance. The defendant did nothing. His sole explanation, despite the rule with which he admitted he was acquainted, that a crossing watchman must suppose a train to be due at his crossing every minute during his period of duty, was that he thought the next train would be from the east, and therefore he did not look to the west.
That a death was not improbable under the circumstances, and that the probability of death should have been within the reasonable apprehension of the defendant is beyond cavil. See 29 C. J. 1154.
Again the defendant contends that “proximate” or “efficient” cause was not explained to the jury, and therefore there was error. One of the defendant’s prayers, in effect, requested an instruction that the jury should consider all the testimony offered on behalf of the defendant which tended to show that there were other factors operating, or that the circumstances were such, or both other factors and circumstances were so operating, that the homi*16cide would have resulted irrespective of the defendant’s failure to act. Another requested instruction was that it must appear that “the death was directly caused by the defendant’s reckless failure to act, and that there existed no other factors or circumstances which, irrespective of the defendant’s conduct, would have so resulted.”
These requests were not complied with for the reason that, in the opinion of the court, there were no other factors which reasonably could be said to enter into the cause. In the determination of proximate cause common sense is not to be eliminated. See Island Express v. Frederick, 5 W. W. Harr. (35 Del.) 569, 171 A. 181; Szymanska v. Equitable Life Ins. Co. (Del. Super.), 7 W. W. Harr. (37 Del.) 272, 183 A. 309. There are many cases in which the evidence may point to antecedent, intervening or concurring causes, and in such cases detailed instructions with respect to proximate cause may well be required. Not so here. There was no evidence that the car in which the deceased was riding was being driven at an unlawful or immoderate rate of speed. There was no evidence that the occupants of the car ’were familiar with the crossing. They both were killed and the presumption is that they exercised due care. The conduct of the occupants of the automobile is eliminated as a factor. The evidence was uncontradicted that the train approached the crossing at a speed not exceeding 15 miles per hour. The next preceding train passed over one-half hour before. According to the defendant’s own testimony the train, at the ordinary rate of speed, was in sight for a minute before reaching the crossing. So the possible factors of the speed of the particular train, the frequency of trains, and the ability to see it approach in time to protect the crossing are eliminated as factors operating, either singly or together, as causes.
The injurious omission was not denied. The connection between it and the fatality was not enfeebled by an *17intervening act or agency. 1 Thompson Neg. 48. An efficient, adequate cause was disclosed by the defendant’s own testimony. There was no other independent intervening or concurring cause shown. An efficient adequate cause being found it must be considered as the true cause, unless another, not incident to it, but independent of it, is shown to have intervened between it and the result. 1 Thompson Neg. 51; 50 C. J. 840.
In such case a detailed explanation of proximate cause is not necessary for the reason that it affords no help to the jury in a proper understanding of the issue before them.
No useful purpose will be served by an analysis of the cases cited by the defendant. Delaware & Hudson Co. v. Ketz (C. C. A.), 233 F. 31; Fair v. Floyd et al. (C. C. A.), 75 F. (2d) 920; Reg. v. Gregory, 2 F. & F. 155, 175 Reprint 1002; Reg. v. Ledger, 2 F. & F. 858, 175 Reprint 1319; Reg. v. Elliott, 16 Cox 710. They appear to be cases where causes other than the one attributed to the defendants were in some degree operative.
The defendant, in his brief, assumes as a fact that there were two independent forces operated by agents unconnected with the defendant. That is the source of his error.
It is contended that the indictment fails to charge the defendant with an indictable offense for the reason that the duty imposed upon him was not such as will support an indictment for the death alleged to have resulted from the omission of duty.
It is sufficient to say that a charge of manslaughter may be predicated upon a failure to act as well as upon an act. 29 C. J. 1158. Whenever death is shown to have been the direct and immediate result of an omission to perform a duty imposed by law or contract, the person charged with the performance of the duty will be deemed guilty of culpable homicide. 13 R. C. L. 855; 1 Wharton Cr. *18Law (12th Ed.), §§ 167, 455. The duty must be a plain duty, that is, it must be one that does not admit of doubt as to its obligatory force. It must be a duty imposed upon the defendant personally, land it must be one which he is bound to perform by law or contract. 29 C. J. 1158; 13 R. C. L. 855; 1 Wharton Cr. Law (12th Ed.), §§ 167, 455; State v. O’Brien, 32 N. J. Law 169.
The indictment charges a plain personal duty imposed upon the defendant by virtue of his contract of employment, and an entire failure to perform that duty. No more need be said.
But, it is also contended that the indictment does not plainly and fully inform the defendant of the nature and cause of the accusation against him, as required by the constitutional and statutory provisions.
Specifically, it is said that the indictment fails to allege whether the defendant was present at the time and place of the homicide, or whether he was under a duty to be there and that he was absent therefrom in violation of that duty. This complaint needs little comment. The indictment sufficiently charges his employment on the day alleged as a watchman- at the crossing and his failure to perform his duties. We think that the defendant does not mean seriously to urge that the indictment lacks clarity in this respect.
Generally, it is said that the indictment fails to allege facts sufficient to support the conclusion that the defendant’s conduct was unlawfully and feloniously careless.
Both the prosecution and the defendant have discussed the constitutionality of statutes permitting short form indictments, and to little purpose. The statute cited was enacted for the purpose of allowing the omission of the old forms and phraseologies required in a common law indictment. It requires that the defendant shall be plainly and *19fully informed of the nature and cause of the accusation against him. State v. Vandegrift, 3 W. W. Harr. (33 Del.) 154, 132 A. 858. It is not therefore a short form statute in any precise sense.
Every essential element of the crime must be averred. That was the rule of the common law. It is confirmed by the statute. The inquiry must be, therefore, whether the indictment contains a plain statement of the elements of the crime of involuntary manslaughter arising out of an omission of specific duty, in language sufficient plainly and fully to inform the defendant of the nature and cause of the accusation against him.
The defendant’s argument is that where negligence, resulting in death, occurs in the performance of a lawful act, the indictment must set out with the utmost clearness the facts upon which the criminal negligence is predicated, United States v. Geare, 54 App. D. C. 30, 293 F. 997, and that the indictment at bar does not measure up to the requirement
It is difficult to understand the legal force and effect of the word “utmost.” It is a superlative, and has no especial significance. If an indictment, avers every element of an offense in language sufficient plainly and fully to inform the defendant of that which he has to meet it is sufficient, although its clearness of meaning may not attain the height of “utmost.” However, it is not the rule but the application of it that causes difficulty. It will not be contended that inferences, conjectures and conclusions will supply insufficiencies of factual allegation, but the authorities cited by the defendant, when applied to the indictment before the court, are of little assistance. State v. Kreuger, 1 W. W. Harr. (31 Del.) 118, 111 A. 614, held only that an averment of unreasonable speed in the operation of a motor vehicle was insufficient, for the reason that the defendant *20was entitled to be informed of the circumstances and conditions which served to make the speed unreasonable. State v. Gray, 38 N. M. 203, 30 P. (2d) 278, State v. Sexsmith, 200 Iowa 1244, 206 N. W. 100, and Kimmel v. State, 198 Ind. 444, 154 N. E. 16, involved prosecutions for deaths caused by negligent operation of motor vehicles. In the first two cases the indictment averred no facts at all upon which the criminal negligences were predicated, and in the last case the averment of fact was clearly insufficient.
These cases, as the defendant observes, were concerned with active conduct, while in the case at bar there is presented a case of inaction which is, as he says, per se, perfectly lawful. In such a case, it is contended, a higher degree of certainty is required.
“Inaction per se perfectly lawful” as applied to the averments of the indictment and the facts proved is a paradox. An act, lawful in itself, but negligently done, is an unlawful act. Com. v. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346. One apparently inactive is actually doing something, even though that something is the abstinence from doing something else that he ought to have done. Even sleeping is an efficient act, and may become the object of penal prosecution when it operates to interrupt an act on the part of the - defendant which the law requires of him with the penalty of prosecution for his disobedience. 1 Wharton Cr. Law (12th Ed.), § 167. Failing to look when required by duty to look is likewise an efficient act.
We think that no more certainty is required in charging manslaughter resulting from negligent inaction than from negligent action. There must be certainty in either case. The former case may present greater difficulty in averment.
We quite agree that the indictment must charge a neglect that is personal, and that the death' must have been *21the immediate and direct result of that personal neglect of duty. It is not enough that the defendant did not see to it that others did their duty. Ainsworth v. United States, 1 App. D. C. 518; Regina v. Pocock, 17 Ad. and El. N. S. 34.
In Com. v. Hartwell, 128 Mass. 415, 35 Am. Rep. 391, the defendant, a conductor of a train, was charged with involuntary manslaughter arising from his neglect to send forward a required signal before moving a train from a side track across another track upon which another train was approaching, whereby a collision occurred and a death resulted. The indictment charged him specifically with the knowledge that the other train was then due and about to arrive at the place in question. No evidence was offered in support of this averment. It was held that as the government had selected the precise ground upon which to stand in describing the nature and extent of the defendant’s negligence, it must be held to the limits it had prescribed for itself. The court held it to be unnecessary to decide whether it would have been sufficient to allege, in general terms, a neglect of duty in not sending out a signal to warn any approaching train, without alleging that the defendant knew that the inward track was likely at any time to be used by an approaching train.
In State v. MacDonald, 105 Minn. 251, 117 N. W. 482, an engineer of a train, not the conductor, was charged with its management. The averment of criminal negligence was that he placed a part of a freight train on a main track when a passenger train was entitled to its exclusive use and right of way, it making its usual and ordinary run over the road. There was no averment that the defendant knew that a passenger train was due or was approaching. It was held that such allegation was necessary to constitute a complete offense. The fact that the conductor is supposed to *22direct the movements of the train, not the engineer, undoubtedly was a consideration in the mind of the court.
State v. Lowe, 66 Minn. 296, 68 N. W. 1094; State v. Smith, 66 Mo. 92; Com. v. Owens, 198 Ky. 655, 249 S. W. 792, need no comment. Obviously in these cases there was averred no causal connection between the acts or omissions relied upon and the death, but rather conclusions drawn from insufficient facts.
The indictment upon which the defendant here was convicted charges the employment of the defendant, the duties cast upon him by virtue of his employment to give warning of the approach of trains to the crossing for the protection of the traveling public, and his personal neglect and omission to give the required warning, or any warning, either to the traveling public or to the deceased. We think that it will not be seriously contended that it was necessary to aver that the defendant knew that vehicles generally, or the vehicle in which the 'deceased was riding, were approaching the crossing.
“Warning” is an understandable word. As used in the indictment, it means notice, information or intimation of approaching or probable danger. The averment, that as a result of the negligent conduct of the defendant, the collision and loss of life occurred, can mean only that they occurred because the deceased was not put on guard by the defendant in accordance with his duty, fatal results flowing proximately from the breach of duty.
We are of the opinion that the indictment contains a plain statement of the elements of the crime of involuntary manslaughter arising out of an omission of duty in language sufficient plainly and fully to inform the defendant of the nature and cause of the accusation against him, within the purpose and meaning of the constitutional and statutory provisions cited.
*23The motion in arrest of judgment and for a new trial is denied.
Harrington, J.:
The alleged defect in the indictment is apparent on the face of the record and that question is, therefore, necessarily before us on the defendant’s motion in arrest of judgment (1 Woolley’s Prac., § 732, 750) ; and by an express statutory provision, under that motion, no formal defects can be taken advantage of. 1 Woolley’s Prac., § 750; Graham, Adm’r, v. Cain, 2 Harr. 97.
On a prior motion to quash, as has already been pointed out, I thought all of the counts of the indictment, on which the defendant was tried, were defective in form and bad on a motion of that character, but his rights under a motion in arrest of judgment are of a very different nature.
The jury has found the defendant guilty of manslaughter and after a verdict, though essential allegations may not be stated with particularity ordinarily required by good pleading, every reasonable inference in favor of the sufficiency of the proof on which the verdict was based will be indulged in. Layton v. State, 4 Harr. 8; Graham, Adm’r, v. Cain, 2 Harr. 97; Woolley’s Prac., §§ 751-753; see, also, Higgins v. Bogan, 4 Harr. 330; Hendrixen v. Huey, 2 Harr. 301.
In Layton v. State, 4 Harr. 8, supra, the Court, in discussing this question, said:
“If the omission [in a pleading] be a mere defect in the form of stating the right or title, then the verdict and judgment would preclude the party from taking advantage thereof as error.”
Quoting the language of Lord Mansfield in Rushton v. Aspinall, Doug. 658, the Court, also, said:
“We find the rule to be, that where the plaintiff has stated his title or ground of action defectively or inaccurately, because to en*24title him to recover all circumstances necessary in form or substance to complete the title so imperfectly stated, must be proved at the trial, it is a fair presumption after verdict, that they were proved; but that where the plaintiff totally omits to state his title or cause of action, it need not be proved at the trial, and, therefore, there is no room for presumption.”
The material allegations of the indictment have already been- set out, in substance, and without analyzing them, it is sufficient to say that they will sustain the verdict on a motion in arrest of judgment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487335/ | Layton, C. J.,
charged the jury, in part, as follows: The duty to retreat when one is attacked is, generally speaking, the law, and is applicable to most cases in which the right of self-defense is invoked as a defense; but in the case before you there is no denial of the fact that the accused was a lawful occupant of the house in which the fatal blow *25was struck. It is in evidence that the accused had for some time made his home in the same house with the deceased and their respective parents, and while it appears that the deceased paid the rent, yet there is nothing to suggest in the evidence that the accused was other than a lawful occupant of the house. In the circumstances and state of the evidence the house in question was the home of the accused.
Generally, it is accepted law handed down to us through many generations that every man’s house is his sure place of refuge and castle of defense, and when one is violently attacked therein by any person who intends to kill him or to do him grievous bodily harm, he need not retreat nor take any steps to get out of the way, but may stand his ground and oppose force with force even to the extent of killing his assailant if necessary for his own safety.1
The State does not deny this general principle; it admits the application of it in the case where one is attacked outside his home and retreats to it. In such case it is admitted that one need retreat no farther. Nor do we understand the State to deny the application of the principle to a case where one in his own home is attacked by an intruder, but it is denied that the principle is to be applied where both the assailant and the person assailed lived in the same house, using it generally as joint occupants.
We can see no more reason why one should retreat from his own house when attacked by a co-tenant or joint occupant than when attacked by a trespasser or intruder. If the house is the home of the person attacked it is his *26natural place of refuge, and if he is required to retreat therefrom or to flee when attacked by another occupant, the question arises at once, Where shall he flee, and how far shall he flee, and when may he be permitted to return ? If he is a lawful occupant, he has the right to remain in the house, and that right is not lessened or destroyed by the fact that he enjoys his right in common with another or with others. So where a person lawfully makes his home in a house, having the status of a lawful occupant, and is violently attacked by another occupant, in circumstances showing an imminence of death or of great bodily harm, he is no more obliged to retreat or flee from the house than in the case where one in his own house is attacked by an intruder. See Jones v. State, 76 Ala. 8; Note, 47 A. L. R. 421; People v. Tomlins, 213 N. Y. 240, 107 N. E. 496, Ann. Cas. 1916C, 916; Watts v. State, 177 Ala. 24, 59 So. 270; 30 C. J. 72.
See State v. Horskin, Houst. Cr. Cas. 116; State v. Dugan, Houst. Cr. Cas. 563, 580; State v. Mills, 6 Penn. 497, 69 A. 841.
See, also, State v. Becker, 9 Houst. 411, 415, 33 A. 178; State v. Warren, 1 Marv. 487, 489, 41 A. 190; State v. Talley, 9 Houst. 417, 425, 33 A. 181. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487336/ | Layton, C. J.,
charged the jury, in part, as follows:
Isaiah Opher, the prisoner at the bar, is charged in the indictment before you with the crime of murder of the first degree of one Isabelle Robinson.
The State contends that in the afternoon of August 10, last, the prisoner induced Isabelle Robinson, a girl of thirteen years of age, to go with him from this city to some place unknown to her to help him carry home something; that pursuant to the inducement the two took a bus and proceeded to a point near Prices Corner in Christiana Hundred in this county, where they got off the bus; that they then went into a nearby wood and while there the prisoner attacked the girl, threw her down on the ground, *94took off her shoes to prevent her running away, took off her bloomers, and then and there had or attempted to have unlawful, carnal intercourse with her by force and against her will and consent; that the girl in struggling finally escaped from the embraces of the prisoner and told him that she was going to tell her mother what he had done; whereupon the prisoner said she would tell no one and taking a revolver which he had wrapped in a newspaper, shot her, inflicting in her back a superficial wound; that the girl then attempted to escape and then the prisoner shot her again, the bullet penetrating her back and passing through her lung; and that she died the next morning as a result of the wound thus inflicted upon her.
The prisoner admitted that he had known the girl for about three years. He denied that he was on the bus on the day of the fatal occurrence. He denied also that he went anywhere on that day. He denied further shooting anyone and said that he had nothing with which to shoot. He denied going to Pittsburgh and stated that he had not seen officer Beswick at all anywhere. He denied also that he had even seen Doctors Davies and Tarumianz who testified that they had examined him after he had returned from Pittsburgh.
It is urged on behalf of the prisoner that he was and is mentally incapable to such a degree as to be insane, and that if the jury should believe that he did, in fact, kill the girl, yet he cannot be found guilty of any offense for the reason that he was at the timé insane.
These are the respective contentions of the State and of the defense very briefly stated. The details of the evidence are for your own recollection.
Section 4697 of the Revised Code of this state provides • that whoever shall commit the crime of murder with express malice aforethought, or in perpetrating or attempting *95to perpetrate any crime punishable with death, shall be deemed guilty of murder of the first degree and shall suffer death.
The indictment before you consists of three counts: The first count charges that the prisoner with express malice aforethought shot and killed Isabelle Robinson. This cSunt, as you will observe, is based upon the first part of the statute. Under this count, as will be explained later, it is incumbent upon the State to prove to you beyond a reasonable doubt that the prisoner killed the deceased with a formed design and purpose — that is, with express malice aforethought.
The second count charges that the prisoner killed Isabelle Robinson in perpetrating the crime of rape upon her.
The third count charges that the prisoner killed the deceased in attempting to perpetrate the crime of rape upon her.
Rape is a crime which is punishable with death under our law; so you will observe that counts two and three are based upon the provisions of the recited statute which are that whoever shall commit the crime of murder in perpetrating or attempting to perpetrate any crime punishable with death, shall be deemed guilty of murder of the first degree. Under the second and third counts it would not be necessary to prove express malice aforethought, for the statute transfers the premeditated intent of the crime of rape to the homicide actually committed so as to make the latter offense a killing with malice aforethought and murder of the first degree. In other words, the turpitude of the criminal act done or attempted supplies the place of deliberate and premeditated malice and is its legal equivalent, and the purpose to kill is conclusively presumed from the *96intention which is the essence of the criminal act, to-wit: rape, and such a murder is murder of the first degree.
The Court is of the opinion, however, that the evidence before you does not sustain the allegations set forth in counts two and three in the indictment for the reason that it appears that the rape or attempted rape upon Isabelle Robinson had been consummated before the fatal shot was fired and that the shooting formed no part of the offense of rape or attempt to rape, but was a subsequent act and detached from those crimes, and that the shot was fired not in the perpetration or attempt to perpetrate the crimes or either of them, but for another ancU.distinct purgóse, to wit: to close the mouth of the victim and thereby to escape detection and punishment.
It is not enough that the killing occurred soon or presently after the felony was attempted or committed. There must be such a legal relationship between the two that it can be said that the killing occurred by reason and as a part of the felony, to-wit: rape; or that it occurred beforeThe felony was at an end; so that the felony had a legal relationship to the killing and was concurrent with it in part, at least, and a part of it in an actual and material .sense. People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 368, 93 Am. St. Rep. 582. Tersely put, death must have been the probable consequence of the unlawful act. 13 R. C. L. 845; 87 A. L. R. 414; Hoffman v. State, 88 Wis. 166, 59 N. W. 588.
Counts two and three of the indictment are nqt.to be considered by you. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487337/ | Layton, C. J.,
in charging the jury, among other things, said:
The defense offered is self-defense, and some general observations concerning that defense are necessary: First, the burden of establishing self-defense to the satisfaction of the jury rests upon the prisoner; second, the general rule is that one who kills another, to be justified or excused on the ground of self-defense, must have been without fault in provoking the difficulty and must not have been the aggressor and must not have provoked, brought on, or encouraged the difficulty or produced the occasion which made it necessary for him to do the killing. A person very plainly has not the right to provoke a quarrel and then take advantage of it to justify the homicide arising from the quarrel which he himself provoked. Third, no looks, or gestures, however insulting, and no words, however offensive thej'", may be, can amount in law to a provocation sufficient to justify an assault. Fourth, in repelling or resisting an assault, no more force may be used than is necessary for the purpose; and if a defendant uses more force than is reasonably necessary he himself becomes the aggressor, for the law recognizes the right of self-defense for the purpose of preventing but not revenging an injury to the person.
Where one is attacked, even though the attack *110be of such character as to create in his mind a belief that he is in danger of death or great bodily harm, yet it is the duty of the one attacked to retreat if he can safely do so or to use such other reasonable means as are within his power to avoid killing the assailant, for no one may take the life of another even in the exercise of the right of self-defense unless there are no other available means to escape from death or great bodily harm.
But the law gives to every one the right to protect his person from unlawful assault and injury by opposing force to force, and one is not obliged, in a proper case, to wait until he is actually struck by an impending blow. If a weapon be raised to shoot or strike, or the danger of other personal violence be imminent, the person in such danger may protect himself by striking the first blow, but only for the purpose of repelling and preventing the attempted injury to himself. Where one is assaulted in a sudden affray, and, in the judgment of the jury, honestly believed on reasonable and sufficient grounds that he is in danger of death or of suffering great bodily harm, he would have in self-defense the right to use a deadly weapon against his assailant; but in exercising such right in a manner likely to cause death or great bodily harm to his assailant he must be closely pressed by him and must have retreated as far as he conveniently and safely could in good faith and with the honest intention to avoid the peril of the assault. It is not sufficient that the one attacked believed himself to be in danger of death or great bodily harm at the hands of the assailant, but the circumstances must be such, in your judgment, as to justify a reasonable man in such belief, and further that there was no reasonable way of avoiding or escaping from such danger except by killing the assailant; nor is a person justified in taking the life of another because such other person is a bad man or of *111low character, or because the person making the assault has been previously assaulted or threatened by the other.
These are the general principles governing the law of self-defense, but the situation here presented by the evidence is somewhat unusual, for there is no evidence that when the prisoner fired the fatal shot the deceased was making or threatening to make any attack whatsoever upon him. The evidence on the part of the prisoner is that Johnson, a companion of the deceased, with a knife in his hand, and while on the sidewalk of the beer garden, made a step forward from the curb toward the place on which the prisoner was then standing, and that the prisoner shot not to ward off an attack made upon him by the deceased, but to defend himself against a threatened attack at the hands of Johnson. In this connection, gentlemen, the law is that where the proof shows a state of affairs which would excuse the killing of an assailant under the law of self-defense, that emergency will be held to excuse the person attacked from culpability if in attempting to defend himself he unintentionally and without negligence kills a third person. 13 R. C. L. 811; 1 Michie on Homicide, 450; Pinder v. State, 27 Fla. 370, 8 So. 837, 26 Am. St. Rep. 75; State v. Benham, 23 Iowa 154, 92 Am. Dec. 416; Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487338/ | Layton, C. J.,
“There is no evidence so far that sug-
gests other than the parties voluntarily fought, and nothing to form a basis for the defense of selfdefense. The objection is sustained.”
Layton, C. J., charged the jury, in part, as follows:
The defendant is charged in the indictment before you with the crime of manslaughter, which is the unlawful killing of one person by another without malice. Malice is a condition of the heart or mind existing at the time of the commission of an act. It is somewhat difficult to define, but *331may be regarded as wickedness of spirit. This condition of heart or mind enters into and pervades the act. As applied to the crime of murder, malice is said to be express or actual where the facts and circumstances disclose a formed design and purpose to kill. It is said to be implied or constructive, where no formed design or purpose to kill is shown, but yet where the killing is without justification or excuse, and with a cruel and wicked indifference to human life. Murder of the first degree is where one kills another with express malice aforethought. Murder of the second degree is where the killing is with implied malice. You are not concerned with the crime of murder of either degree, and consequently are not concerned with the question of malice, for the State has not charged, nor does it contend, that the defendant killed Ritter in circumstances amounting to murder of either degree.
All unlawful killings which do not amount to murder either of the first or second degree are man-slaughters. Where, for example, one in a sudden fight, in the heat of blood or gust of passion aroused by adequate provocation, without time for reflection or for the passions to cool, kills another, it is manslaughter. The frenzy of mind thus aroused precludes the idea of malice. Manslaughter may also occur where one, in doing an unlawful act, not in itself felonious nor tending to do great bodily harm, undesignedly kills another. In such case there is no malice for the reason that the circumstances do not disclose that wicked condition of heart or mind which is characteristic of malice. In either case the law regards the killing as unlawful, and therefore, punishable, but not as a malicious killing as is murder. In either case the law makes allowance for human frailty and infirmity.
The uncontradicted evidence on the part of the State and the defendant’s own testimony disclose a case of mutual combat, by which is meant a fight into which both parties *332enter willingly. The term comprehends a mutual intent to fight. Mutual blows are not necessarily required.
Where persons fight on fair terms and merely with fists, the blows interchanged not being likely to cause death, and life, consequently, not ordinarily being at hazard, the survivor is guilty of manslaughter if his blows cause the death of his opponent, even though he did not intend to kill. This is so for the reason that all physical conflicts and encounters when induced by the passions of the parties and accompanied with an intent to do bodily injury, are unlawful. Fighting with fists, even on fair terms, is an unlawful act. It is not a felonious act, nor, ordinarily, does such fighting tend to do great bodily harm; but, being unlawful, if the death of one ensues from a blow, it is manslaughter under the very definition of the term, even though the taking of life was not intended and was entirely unexpected.
Where persons engage in a mutual combat it is not material who gives the first blow. And, one who willingly enters into a combat and fights willingly, not for his own protection, but to gratify his passion by inflicting injury upon his opponent, may not invoke in his behalf the doctrine of selfdefense. Selfdefense is founded on the law of nature. It is based upon necessity, real or apparent. It must appear that the killer acted from necessity, or reasonably apparent necessity, to save himself from death or great bodily harm, and that he had retreated as far as he could with safety to himself. Under the evidence in this case the issue of selfdefense is not for your consideration. Wharton Homicide, 288, 290, 538; 13 R. C. L. 851; State v. Doherty, 72 Vt. 381, 48 A. 658, 82 Am. St. Rep. 951.
The words, “reasonable doubt,” mean precisely what they seem to mean, a doubt based upon reason, a doubt having something substantial to rest upon. There is nothing *333in the words that may not be understood by the average intelligent mind. The mental operations of sane persons are governed by the same rules, whether they are in the jury box or out of it. The words mean the same thing in the Court room as outside. There is nothing mysterious about them at all, and jurors ought to be convinced, as jurors by the same evidence that would convince them as men, and upon which they would act in the management of their own important affairs and concerns.
A reasonable doubt is one founded in sincerity and common sense. It is not a possible, or vague or speculative doubt, or a groundless surmise or suspicion, but it is a substantial doubt, such as honest, sensible and fair minded men, after a careful consideration of all the evidence, might with reason entertain consistently with a conscientious desire to ascertain the truth. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487339/ | Layton, Chief Justice,
charged the jury, in part, as follows:
George Arnold, the defendant is charged in the indictment before you with the crime of involuntary manslaughter as a result of the death by drowning in the Delaware Bay of one John Fritz, on July 11, 1941.
The State has offered evidence tending to show that on that day about 7:45 in the morning, the defendant was the Captain of and in personal charge of a tugboat having in tow a barge proceeding in a southerly direction down the Bay to Milford, Delaware; that the length of the towing hawser was about two hundred feet; that at the time the deceased was fishing from a fishing boat anchored at a short *50distance from a wreck called the “Mohawk;” that the sun was shining, visibility good, the wind from the south and the tide at full flood; that when the tug and tow passed the “Mohawk,” the defendant took a course which would bring them close to the anchored fishing boat; that when the tug had passed the fishing boat, the defendant, without making certain that the tow had passed it also, changed his course to the southwest, and this change of course brought the tow in such position that the hawser passed over the fishing boat, whereby the deceased was thrown into the Bay, either as a result of having been struck by the hawser or by the impact of the subsequent collision of the tow with the fishing boat, and was drowned.
The State contends, therefore, that, in the circumstances shown, the- conduct of the defendant amounted to criminal negligence, and that he is guilty of involuntary manslaughter as charged in the indictment.
The defendant admits that he was at the wheel of the tug and was responsible for the management of the tug and tow. On his behalf testimony was offered tending to show that the towing hawser was 300 to 400 feet in length; that after the tug and tow had passed the “Mohawk” a short distance, the defendant changed his course from a general southerly direction to a West South West course and maintained that course; that the tug passed the fishing boat in plenty of safety at a distance of three or four hundred feet, and the defendant then paid no further attention to the fishing boat. The defendant’s contention is that, at the most, he erred in judgment, but was in no sense guilty of such negligence as is punishable criminally.
These, briefly, are the respective contentions of the State and the defendant.
Involuntary manslaughters fall into two classes: First, where a person in doing an unlawful act not in itself *51felonious or tending to great bodily harm, undesignedly kills another; Second, where a person in doing an act entirely lawful in itself, but without proper care and caution, undesignedly kills another.
It will be seen, therefore, that the second class of involuntary manslaughters comprehends acts of negligence causing death where, although there was no intent or purpose to take life, yet there was some act of commission or omission endangering the life or safety of another; and it is this form of involuntary manslaughter that is charged in the indictment. It is, of course, entirely lawful to operate a tug and tow on the Delaware Bay, but the operation must be conducted with proper care and caution, and want of cafe may be such as to amount to criminal negligence, dependent on the facts and the applicable law.
Negligence, generally, is the failure to exercise that degree of care and caution which a reasonably prudent and careful person would exercise in similar circumstances. The standard of care to which every person is held by the law is riot to be determined by the judgment of the person charged with the negligence, but it is that standard which is found in the conduct of a reasonably prudent person in like circumstances; and it is for the Jury to say, not the defendant, whether the defendant’s conduct in the particular case was that of a reasonably prudent and careful person.
Negligence, generally speaking, is negative in character, and implies non-feasance. Its distinguishing characteristic is thoughtlessness, inattention, or inadvertence. While a mere negligent act of commission or omission may well be the basis of a civil action for damages, not all negligent acts resulting in injury or death are punished criminally. The criminal law demands that the negligence be of such degree as to evidence a reckless disregard for the life or safety of others within the range of the negligent *52conduct, or, as is sometimes expressed, to evidence a conscious indifference to consequences. If a person in doing an act, or pursuing a course of conduct, knows, or as a reasonable person should know, that his conduct will likely cause injury or death to another, and with that knowledge, actual or imputed, he persists in such conduct, such person is acting in reckless disregard for the safety of others; and it is for you to say whether the conduct of the defendant, in operating the tug and tow, under the law and the facts as you shall find them to be, amounted to a reckless disregard for the life and safety of the deceased, or whether the defendant’s conduct was merely negligent conduct, without more, or not negligent at all.
In arriving at your conclusion, you should consider carefully the proved facts and circumstances, the weather, wind, tide, conditions of visibility, length of hawser, position of the fishing boat and the course of the tug and tow; and all this in connection with certain principles of law applicable to maritime affairs.
For the purposes of navigation and where the tow has no steering gear, as was the case of the tow here, the tug and tow are regarded as a single vessel. The tug is bound to know the conditions of navigation peculiar to the locality, the weather conditions, and the strength of currents and condition of tides. The tug must keep the tow in control and pay close attention to it; and when meeting or attempting to pass other vessels, a tug should shape her course so as to carry herself and her tow free, and it is not sufficient that the tug alone passes in safety. The tug must give sufficient room to other vessels, must take timely precautions, and must not approach so near as to cause a collision between the tow and another vessel as a result of the wind or tide setting the tow and such other vessel together. When a vessel is at anchor in a proper place, and is struck by a moving vessel, the moving vessel is presumptively at fault, *53but the presumption goes no further than ordinary negligence. The moving vessel must avoid one at anchor, if reasonably practicable, and passing vessels with tows should give the anchored vessel a sufficiently wide berth to pass by with the tow in safety, always taking into consideration a change of course, the effect of the wind and tide, and such other contingencies and navigation as may be reasonably anticipated.
The defendant, as has been said, admits that he was in charge of the tug and tow and that he was responsible for their management. It is not denied that the towing hawser passed over the fishing boat on which the deceased was, nor that the tow collided with the barge, nor that the deceased was thrown into the water and was drowned. But, it is incumbent on the State to prove to your satisfaction beyond a reasonable doubt that the defendant not only was negligent in omitting to observe those precautions which all persons lawfully on the Delaware Bay, and in particular, the deceased, were entitled to have observed for their safety, but also that such omission, or negligence amounted to a reckless disregard for the safety of such other persons; and further, that such omission of duty, or negligence was the proximate or efficient cause of the death of the deceased.
If you shall be so satisfied, your verdict should be guilty. On the other hand, if you shall be satisfied that the negligence of the defendant, if any, did not amount to a reckless disregard for the safety of others, or if you shall entertain a reasonable doubt thereupon, your verdict should be not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487340/ | Layton, C. J.:
I think that is correct, Mr. Killoran. The statute (5312, Rev. Code 1935) provides that the juror may be asked if he has formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar; and I think it has been ruled directly more than once that the statutory form of question may not be altered. In one case (State v. Roberts, 2 Boyce 140, 78 A. 305, 309), the Attorney-General sought to change the form of the statutory question, asked of jurors by the prosecution, “Have you any objection to returning a verdict of guilty in a case where the punishment is death, if the evidence should so warrant,” by adding the words, “the evidence being circumstantial.” On objection the question was not allowed, the Court saying that it should adhere to the long prevailing practice and *185procedure and permit only such questions as the statute authorizes, “and in the language of the statute.”
I, myself, have long doubted the correctness of this' ruling. It is manifest that if a prospective juror has formed an opinion that the accused is guilty of the crime charged, he is as much disqualified as if he had expressed his opinion. His mental attitude is the same in either case.
We are satisfied that the question may be asked in the form suggested by counsel for the accused, notwithstanding any prior ruling of this Court.
(Counsel for the defendant thereupon asked the following question of each juror:)
“Have you formed and expressed, or formed an opinion alone, in regard to the guilt or innocence of the defendant at the bar?”
Evidence of the accused’s prior good reputation for peace, good order and observance of the law was offered. The jury were charged as follows:
Layton, C. J.:
The good reputation of an accused person, when proved, is a fact, like any other fact. But the jury should understand what reputation is. Reputation is not character. Character is what a person really is; reputation is what people think him to be. Common experience tfells us that persons of excellent reputation commit crimes; and that persons of evil reputation are not always guilty of the crimes charged against them. So all that can be said with respect to evidence of good reputation is that, when proved to the satisfaction of the jury, it is a fact to be considered in connection with all other facts proved, and should be given just that weight, much, little or none, as the jury think it is entitled to have. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487341/ | Layton, Chief Justice,
charged the jury in part, as follows:
The defense in this case is that the defendant killed the deceased in the necessary defense of his own life. When established to the satisfaction of the jury, this defense is absolute, and entitles the defendant to a verdict of acquit*422tal. The burden of proof in such defense is upon the defendant ; but while he does bear the burden of proof, yet, if upon the whole state of the evidence, the prosecution has not sustained the burden resting upon it to establish the guilt of the defendant beyond a reasonable doubt, the defendant should be acquitted.
The right of self-defense rests upon necessity. In repelling or resisting an assault nó more force may be used than is necessary for the purpose, and if the person attacked does use in his defense more force than is necessary he, himself, becomes the aggressor.
Ordinarily, one who is attacked, even if the attack is of such character as to create in his mind a reasonable belief that he is in danger of death or great bodily harm, is under the duty to retreat, if he can safely do so, or to use such other reasonable means as are within his power to avoid killing his assailant; for no one may take the life of another, even in the exercise of the right of self-defense, unless there are no other reasonably available means of escape from death or great bodily harm. But here the defendant was attacked by the deceased with a deadly weapon in the hallway of his own house, and whatever rightful use of the hallway the deceased may have been entitled to under his arrangement with the defendant, the fact remains that the defendant was in his home. Where one is violently attacked in his own home by another who apparently intends to kill him or do him grievous bodily injury, he need not retreat or take any steps to get away from his assailant, but may stand his ground and oppose force with force even to the extent of killing his assailant, provided that is necessary for his own safety. But having in mind that the right of self-defense rests upon real or apparent necessity, taking the life of another is not excusable if the danger could reasonably have been obviated by less violent means; and, ordinarily, one, even in his own home, will not be justified in killing his assailant after the *423latter has been disarmed or otherwise disabled; for, after disarming or disabling the assailant in self-defense so that the peril is averted, the person attacked will become the aggressor if thereafter he kills his assailant. The facts are not in dispute; and the question before you is a narrow one. In the circumstances shown, the defendant having seized the hand of the deceased in which was held the knife or dagger, had he succeeded in so disabling the deceased that he was no longer in danger of death or of suffering further great bodily harm? In determining this question the jury should consider the suddenness of the attack made upon defendant by the deceased, their respective ages, and should keep in mind that a person suddenly and violently attacked by a deadly weapon and actually wounded thereby, may not reasonably be supposed to retain the presence of mind, calmness and composure necessary to weigh with nicety the question whether some other means short of taking life would answer the purpose; and if the jury shall be satisfied that, in the circumstances shown, the defendant, as a reasonable man, was justified in the belief that he was in danger of death or of suffering further great bodily harm at the hands of the deceased, the defendant should be acquitted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487343/ | Richards, C. J.:
Since the adoption of the Nineteenth Amendment to the Constitution of the United States granting the right of franchise to women, the question of their eligibility for jury duty has arisen a number of times in both the Federal and State Courts. It has been recently considered by the Supreme Court of the United States in two very interesting and able decisions. Ballard et al. v. United States, 329 U. S. 187, 67 S. Ct. 261; Fay v. People of State of New York, 332 U. S. 261, 67 S. Ct. 1613.
' The qualifications for both grand and petit jurors in the Federal Courts have been fixed by Congress as the same as those required by the highest court of law in the state in which the Federal Court is sitting.
It has provided that citizens shall not be disqualified from jury service “on account of race, color, or previous condition of servitude,” that they shall be chosen “without reference to party affiliations,” that they shall be returned from such parts of the district as the court may direct “so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district.” [28 U.S.C.A. §§ 415, 412, 413.] It should be noted that these regulations have no bearing upon the question of sex.
In Glosser v. United States, 315 U. S. 60, 62 S. Ct. 457, 472, 87 L. Ed. 680, it was said that “the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a ‘body truly representative of the community’.”
In United States v. Roemig, (D.C.) 52 F. Supp. 857, 862, in speaking of exclusion of women from jury panels, the Court said “such action is operative to destroy the basic democracy and classlessness of jury personnel.” It “does *375not accord to the defendant the type of jury to which the law entitles him.”
In the case of Ballard v. United States, supra, [329 U. S. 187, 67 S. Ct. 265], the Court said “the injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.”
In the case of Fay v. People of the State of New York, supra [332 U. S. 261, 67 S. Ct. 1628], it was said “the contention that women should be on the jury is not based on the Constitution, it is based on a changing view of the rights and responsibilities of women in our public life, which has progressed in all phases of life, including jury duty, but has achieved constitutional compulsion on the states only in the grant of the franchise by the Nineteenth Amendment. We may insist on their inclusion on federal juries where by state law they are eligible but women jury service has not so become a part of the textual or customary law of the land that one convicted of crime must be set free by this Court if his state has lagged behind what we personally may regard as the most desirable practice in recognizing the rights and obligations of womenhood.”
As we understand these cases, however, the primary question before the Court was the regulation of juries in the federal courts. In Fay v. People of State of New York, supra, the Court further said “over federal proceedings we may exert a supervisory power with greater freedom to reflect our notions of good policy than we may constitutionally exert over proceedings in state courts, and these expressions of policy are not necessarily embodied in the concept of due process.”
Admitting that the qualifications for jury duty in *376the Federal Courts are the same as those fixed by the highest court of law in the state, yet the method of selecting the jury by the state and the qualifications which it requires of its jurors is left entirely to the State Legislature. For this reason we do not think that the action of the Jury Commissioners in failing to place any women on the jury panel from which the Grand Jury for New Castle County for the year 1947 was drawn, presents a question of due process under the Fourteenth Amendment of the Federal Constitution.
Our State Constitution at Section 4 of Article 1 provides “trial by jury shall be as heretofore.” Section 7 of Article 1 provides “in all criminal prosecutions, the accused hath a right to be heard by himself and his counsel * * * and a speedy and public tria^ by an impartial jury; he shall not be compelled to give evidence against himself, nor shall he be deprived of life, liberty or property, unless by the judgment of his peers or by the law of the land.”
In State v. McCarthy, 76 N.J.L. 295, 69 A. 1075, where similar constitutional provisions were being considered, it was said that such constitutional guaranty as to the right to trial by jury meant a trial by jury at common law. In Blackstone’s Commentaries we find that a common law jury consisted of “twelve free and lawful men.” 3 Blackstone’s Com. 352. The same author states that women could not serve as jurors at common law except upon a jury to try an issue under a writ of de ventre inspiciendo. 3 Blackstone’s Com. 362.
Chapter 131 of the Revised Code of 1935, at Paragraph 4721, Section 1, contains this provision “all persons qualified to vote at the general election shall be liable to serve as jurors.”
It is contended on behalf of defendants that the Jury Commissioners in selecting the jury panel from which the *377Grand Jury for New Castle County for the year 1947 was drawn, and in selecting said Grand Jury for New Cástle County for the year 1947 intentionally and arbitrarily excluded women from said jury panel from which said Grand Jury was selected, and that this action by the Jury Commissioners was not only in violation of the due process clause of the Fourteenth Amendment of the Federal Constitution, but also a violation of the Constitution of this State and Paragraph 4721, Section 1, of the Revised Code of this State of 1935.
The Jury Commissioners were called upon to testify why they had not placed women on the jury panels from which the Grand and Petit Juries for New Castle County were drawn. One of them testified that in selecting persons for the jury panels from which the jurors were drawn he had always selected persons who in his judgment were most suitable and qualified for that purpose. The testimony of the other Commissioner was practically to the same effect, except that he added that he had not selected women because he thought that proper accommodations were not provided for them at the Court House which would make it embarrassing for them to serve as jurors. Each of said Commissioners testified that they had no personal objection to women as jurors, and had no other reasons for not including them on the jury panels than those already stated.
There is no doubt that since the adoption of the Nineteenth Amendment to the Federal Constitution granting the right of franchise to women, and the enactment of the statute by the Legislature of this State making all persons qualified to vote at the general election liable to serve as jurors, that women have been eligible for jury duty and could have been drawn by the Jury Commissioners for that purpose at any term of Court. Under the provisions of a statute passed in 1923, being Chapter 237 of *378Volume 33, Laws of Delaware, women were entitled to be excused from service upon either the Grand or Petit Jury upon request without any reason being given therefor, which may have been partly responsible for the failure of the Jury Commissioners to place them on the jury panel. This act excusing women from jury duty upon request was repealed by the Legislature in 1945, 45 Del. Laws, c. 253, and they are now liable for jury duty to the same extent that men are and are required to have a substantial reason if they desire to be excused.
Paragraph 4724, Section 4, of the Code of 1935, provides that the Jury Commissioners for each county shall, in the month of December of each year, “select, from the citizens of each County who are liable to serve as jurors * * * in such proportion from each Representative District of the County as may be deemed proper, the names of fifty sober and judicious persons to serve (if summoned) as grand jurors;” and at any time when it shall be their duty to draw the names of persons to serve as petit jurors, to “select from the citizens of each County who are liable to serve as jurors, as aforesaid, in such proportion for each Representative District of the County as may be deemed proper, the names of one hundred and fifty other sober and judicious persons to serve (if summoned) as petit jurors.” This statute gives the Jury Commissioners much discretion in determining who shall be selected for jury service.
There is nothing in the Federal Constitution, our State Constitution, or the statutes of this State which in so many words require the jury Commissioners ■ to select women for jury duty. A person accused of a crime or misdemeanor is not entitled to have the offense with which he is charged heard and passed upon by a Grand Jury composed of any particular group or class of people, or any particular race or sex.
*379The provisions of many states with respect to the eligibility of women for jury duty are similar to those which exist in this State and it is only of comparatively recent years that they have been serving in that capacity. So Delaware is not the only state which, to use the words of Mr. Justice Jackson in Fay v. People of the State of New York, supra, has “lagged behind” in recognizing the rights and obligations of women.
The statute provides that the jurors shall be selected from the citizens of the County who are liable to serve as jurors, which includes all persons liable to vote at the next general election, and this embraces women as well as men.
We think that the Jury Commissioners should continue to exercise their discretion and in selecting the persons to be placed upon the jury panels from which the Grand and Petit jurors are drawn, should endeavor at all times to select persons who are suited and qualified for that purpose.
In view of the great change which has taken place in the activities of women in public life in this State as well as everywhere else, we think, that the Jury Commissioners should not only recognize that they are liable to serve as jurors but should include them at all times on the jury panels from which the jurors are drawn for both grand and petit juries, in order that said juries may be truly representative of every class of citizens of the district or territory from which they are drawn.
The defendants in this case being all men, they are not members of the class which they claim were discriminated against, namely women, by the Jury Commissioners in selecting the persons to be placed upon the jury panel for Grand Jurors for New Castle County for the year 1947 and from which the Grand Jury by which the indictment against them was found was drawn, there*380fore we fail to see how they have been prejudiced by said action of the Jury Commissioners or should be allowed to take advantage thereof.
In the case of Fay v. People of the State of New York, supra, it was said “this Court, however, has never entertained a defendant’s objections to exclusion from the jury except when he was a member of the excluded class.” State v. James, 96 N.J.L. 132, 114 A. 553, 16 A.L.R. 1141; Salen v. State, 231 Wis. 489, 286 N. W. 5; Commonwealth v. Duca, 312 Pa. 101, 165 A. 825; McKinney v. State, 3 Wyo. 719, 30 P. 293, 16 L.R.A. 710; Harraway v. State, 203 Ark. 912, 159 S. W. 2d 733; Rawlins v. State of Georgia, 201 U. S. 638, 26 S. Ct. 560, 50 L. Ed. 899, 5 Ann. Cas. 783.
The motion to quash the indictment is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487344/ | Wolcott, Judge.
The reasons asserted in the motion to quash raise in substance one question for decision. That question is whether or not the enactment of Volume 46, Laws of Delaware, Chapter 186, operates as an implied repeal in part of Section 5161, Revised Code of 1935 insofar as that section provides that the common law crime of involuntary manslaughter by automobile should be a crime under the laws of this state. The contention of the defendant in this respect is that the provisions of Chapter 186, and the provisions of Section 5161 are so repugnant and inconsistent that the later statute necessarily operates as a repeal of that part of the prior statute which permitted prosecution for the common law crime of involuntary manslaughter by automobile.
As a general rule, repeal of statutes by implication is not favored by the courts. When a subsequent act, however, contains terms and operating effects which cannot be harmonized with the terms and necessary effect of an earlier act, an implied repeal of the earlier act will result, since the later act is the last expression of the legislative will The ru.e of implied repeal is *247based upon the presumption that the legislature intends to maintain a consistent body of law in its entirety. The rule has been recognized on numerous occasions in this state. Mayor and Council of Wilmington v. State ex rel. Du Pont, 5 Terry 332, 57 A. 2d 70; State v. Donovan, 5 Boyce 40, 90 A. 220; State ex rel. Mayor and Council of Middletown v. Peverly, 2 W. W. Harr. 443, 125 A. 421.
The rule of implied repeal is expressed by the Supreme Court in Mayor and Council of Wilmington v. State, supra, in the following language [57 A. 2d 79] : “Repeals by implication are not favored and are ordinarily only effective when the provisions of a subsequent Act relating to the same subject are so inconsistent with, and repugnant to, the prior Act that they cannot be reconciled on any reasonable hypothesis. (Citing authorities.) That the latter (sic., later) statute is different is not enough; it must be contrary to the prior Act. * * .”
The rule necessitates a comparision of the common law crime of involuntary manslaughter with the provisions of 46 Laws of Delaware, Chapter 186, providing for the crime of negligent homicide by automobile. The pertinent part of the latter is found in the following language: “Every person who through the operation of a motor vehicle in reckless disregard of the safety of others shall cause injury to another person, which injury shall be the proximate cause of the death of the person within one year from such injury shall be deemed guility of negligent homicide, * *
The defendant maintains that the quoted portion of the act provides for a crime which differs in no material element from the common law crime of involuntary manslaughter by automobile. The State, on the other hand, in speaking of Chapter 186, Volume 46, Laws of Delaware in its brief has the following to say:
*248“The intent and purpose of this act was to create an offense where an automobile might be operated under circumstances that .would not raise the offense to manslaughter and felony.’’
The crime of negligent homicide by automobile is defined in Chapter 186 as the driving of a motor vehicle “ in reckless disregard of the safety of others.” In State v. Elliott, 1 Terry 250, 8 A. 2d 873, 874, this court had occasion to define involuntary manslaughter by automobile. The ■ opinion in that case contains the following language:
“Courts have said that to be punished as a crime the negligence must be culpable or gross, or that the conduct of the accused person must have been such as to evidence a conscious indifference to consequences, or to show a z'eckless disregard for the life and safety of others, or to be izicompatible with human life and safety. These expressions, when examined, mean only that to be punished criminally, the cozrduct of the accused person must have been such as was likely to cause great bodily harm or death to another reasonably within its range. * * *
“Mere ziegligent driving, without znore, is not punished criminally; but where the conduct of the driver is such as to evidence a reckless disregard for the life and safety of others, it is such negligence as is subject to criminal prosecution and punishment.”
The definition of involuntary manslaughter so set forth is aznply supported by the authorities within this state. In essence, therefore, the crime of involuntary manslaughter by automobile has as its maizi element “a reckless disregard for the life and safety of others”. The crime of negligent homicide set forth in Chapter 186 has as its znain element the driving of a znotor vehicle “in reckless disregard of the safety of others.” There is no distinction between the eleznents of the two crimes as defined *249and, accordingly, the two statutes provide for the punishment of identical acts and the same proof that would support an indictment under one statute would be required to support an indictment under the other.
We are faced with the situation of two statutes each providing that identical acts shall constitute a crime. However, Section 5161 provides that such acts shall constitute manslaughter and a felony, while Chapter 186 provides that such acts shall constitute negligent homicide and a misdemeanor. The difference in degree provided in the two statutes for the same offense, in our opinion, has created an inconsistency which cannot be reconciled on any reasonable basis.
In Lewis’ Sutherland Statutory Construction, 2nd Ed., Vol. I § 252, it is said:
"Where a later statute contains no reference to the former statute, and defines an offense containing some of the elements constituting the offense defined in such former statute and other elements, it is a new and substantive offense. The two statutes can stand together and there is no repeal. So if the later statute prescribes a punishment for acts with only a part of the ingredients or incidents essential to constitute the offense defined in a former statute.
“But if the same offense, identified by name or otherwise, is altered in degrees or incidents, or if a felonjr is changed to a misdemeanor or vice versa, the statute making such changes has the effect to repeal the former statute. * *
We are, accordingly, of the opinion that the two statutes are in fact repugnant and that the effect of the adoption of 46 Laws of Delaware, Chapter 186, since it is the later act, was to repeal by implication Section 5161, Revised Code 1935, insofar *250as it provided for the common law offense of involuntary manslaughter by automobile.
The result, therefore, is that on November 4, 1948, the common law crime of involuntary manslaughter by automobile was not an offense under the law of Delaware. The indictment before us charging the commission of such a crime on November 4, 1948 while Chapter 186, 46 Laws of Delaware, was in full force and effect, is an indictment for a non-existing offense within the State of Delaware at that time. The motion to quash, therefore, must be granted.
The 1949 session of the General Assembly repealed Chapter 186, 46 Laws of Delaware. While the question is not before us, we nevertheless feel justified in referring to the rule that the repeal of a statute which repealed an earlier statute by implication has the result of restoring to the body of the law the earlier statute. As is said in Sutherland Statutory Construction, 3rd Ed., Vol. 1, § 2039: “Under the common law rules of interpretation, the repeal of a repealing statute operates to revive the original enactment when the repeal of the repealing statute is accomplished by expressed provision without additional legislation upon the subject matter.”
See, also, Mayor etc., of City of New York v. Broadway, 97 N. Y. 275; Applestein v. City of Baltimore, 156 Md. 40, 143 A. 666.
The result, therefore, is that from April 4, 1947, the date of approval of Chapter 186, 46 Laws of Delaware, to the date of the act repealing that law, there could be no prosecution in this state for common law involuntary manslaughter by automobile but prosecutions for circumstances which formerly would have supported such an indictment must have been for negligent homicide under 46 Laws of Delaware, Chapter 186. How*251ever, the repeal of Chapter 186 resulted in a revival of that part of Section 5161, Revised Code 1935, which provided for prosecutions for the crime of involuntary manslaughter by automobile.
This, of course, does not assist the State in maintaining the present indictment which will be quashed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487345/ | First, that a demand of lease, entry, and ouster to be confessed after the plaintiff’s title was almost gone through, and the jury was once dismissed and returned next day, was in time.Second, a warrant printed, without seal, directed to the deputy surveyor, was allowed to go to the jury on solemn argument. N.B. Bill of exceptions taken. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487347/ | Objected that he might have restitution, that he was interested, and that the practice had been otherwise; and cited Gilb.Evid. 135, 1 Salk. 283, 2 Hawk.P.C. 433, [2] Str. 728, 1043, 1104. Were cited in answer for the State: 2 Str. 1229, 4 Burr. 2252, and [1] Dall. 110.
Court took the opinion of the Bar who, except Miers Fisher, were against the admission. But the Court (a majority) overruled the objection.
N.B. Although by 2 Str. 1043, 1104, 1229, a party interested in a note can give evidence in a criminal prosecution on it for forgery, perjury etc., yet by 1 Morg.Ess. 271, and 1 Term 296, it seems the law was not so before Chief Justice Lee’s time (vide 2 Hawk.P.C. 610, 611 and 1 Morg.Ess. 438). And to this day if the witness is to be a gainer or loser by the event of the cause, he cannot be a witness; and before 21 Hen.VIII, c. 11, in larceny the party robbed being a witness could not have the stolen goods as per 4 Bl.Comm. 356. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487348/ | Bassett, C. J.,
said a majority of the Court were for admitting her ex necessitate rel — that she was a good witness by the common law, and not excluded by the Act of Assembly from obtaining redress in that way, but, if the assault had been on a white man, he would not have admitted her.
Another witness proved it was the Negro’s own assault.
Verdict not guilty, and the court refused to certify. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487356/ | Per Curiam.
Your examination of the plaintiff’s witnesses as to the entries on this book is certainly waiving any objection to the book. This book is better evidence of its contents than whati any man can remember of it.
After argument before the jury, which was on the facts, except a difference on the subject of limitations for defendant urged from 1 Esp.N.P. 151, 152 that the charges more than six years past from the bringing the writ were barred, the court charged the jury thus"
Bassett, C. J.
Your consideration is led to the first (which was for money laid out and expended) and not to the two last {quantum, meruit and insimul computassent) by the evidence. As to limitation on this count, wherever two men have mutual dealings with each other (for instance, suppose I sell to one of you a horse and charge you with it, you sell me a cow and charge me with it, and then a parcel of sheep and charge me with them, and so on) and the accounts are not closed, it is no matter if they run six, seven, eight, nine, ten, fourteen, twenty years, the Stat*65ute is no bar. But where the charges are all on one side, and any of them are more than six years, the Statute there is a bar. [1 Del.Laws 526].
Verdict for plaintiff for his demand. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487357/ | Per Curiam.
Court cannot do otherwise than discharge upon a faulty indenture; they cannot direct a new one to be made, they have no such authority. Vide 1 Body Laws 177, 331, June 29, 1791. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487359/ | The charge to jury by Bassett, C. J.:
Whenever one man touches another in an angry manner it is a battery. Every battery includes an assault, and there can be no battery without an assault. If you think the touching by defendants was done by them when angry, there is a battery.
One was acquitted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487360/ | . [Chief Justice] Bassett’s charge, “I am led to explain the law to you in consequence of questions that have been proposed to the witnesses etc. Whenever two men agree to go and fight, it is no justification.”
Verdict not guilty.
N. B. This was a battle by consent of both parties. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487361/ | Read, C. J.
The survey was made within six months, viz. May 1,1759.
Ridgely. “Legally claiming,” 4 Vol. 276,1 was construed as giving a right only to those who had a legal title; and we urged that Messrs. Wright could not have any title, for it was forfeited.
Read, C. J.
Does the first section mean anything more than grants completed by patent? And the second section supplies that defect.
Ridgely. If the first section means only patent lands, Messrs. Wright are equally affected by it as we are. Upon the same principle Morris would have the title that Wright claims.
Bassett, C. J.
Do you mean, Mr. Ridgely_, that where all the terms of each warrant mentioned in the first and second sections have not been specifically performed, that those warrants are void?
Ridgely. Yes, for if the Act of Assembly went further, all the void warrants in the newly acquired parts of the State from Maryland would have been equally confirmed with those that are good. The Act of Assembly from Maryland confirms me that unless that Act had been made nobody could have obtained patents or confirmations of their forfeited warrants, and the Act considers such warrants as the Messrs. Wright’s only as applications.
Read, C. J.
The Act was designed to prevent the land officers from carrying into execution such regulations as Baltimore had given them in suffering a discoverer to take the advantage of the forfeiture. After two years this proclamation warrant (Wright’s) was either voidable or void, which you will consider.
Ridgely. The laying of our warrant in 1773, which had been granted in 1732, was after Wright’s warrant was forfeited, and is such an appropriation as destroys his warrant and will have the same effect as if it had been taken out in Maryland under Baltimore. It is a rule that a located warrant shall have preference to one of another kind until it is laid, but when laid that one shall have preference for all not strictly within the location of the first, and this is what is established by the case of Smith v. Proc*99tor. The paying a tax for the land does not procure acknowledgment of title on the part of the State, for the vacant land would then be all granted by accepting of taxes. If in 1732 by agreement between the Proprietaries no warrant shall issue for land in dispute until settled, Wright’s warrant in 1758 could not regularly have issued and is void for the officers had no authority to issue such warrant.
Read, C. J.
The agreement between the Proprietaries was construed by both of them as only preventing the granting patents, for each of them issued warrants for the disputed lands. These lands were applied for before the agreement between the Proprietaries; I would wish to hear you upon what effect this agreement may have upon these particular warrants.
N.B. In a further stage of the cause, Read, C. J., discovered by searching the printed articles of agreement that they contained no such stipulation; but it was implied in the assent of the Proprietaries to the king’s proclamation dated August 18, 1737, which prohibited both the granting and settling the disputed lands by either Penn or Baltimore. This appeared by a copy of the proceedings in council at Annapolis in 1738 reciting the last proclamation. And Read, C. J., said, “I think the royal order was a good and effective one, for it was for the public peace.”
Wright in answer. Although the Proprietaries were prevented from granting lands until their dispute should be settled, yet they were not prevented from agreeing to grant lands thereafter. This prevented our completing our title by patent, but we are not to be blamed if the Proprietary would not grant, and are not liable to forfeit for an act not our own. The governor’s proclamations were not and had not the effect of laws; they were a direction to be pursued by the officers, but if they did not pursue them and the grants were variant, they were good and stood unaffected by the proclamations. Morris’ warrant was in 1720 and before the Proprietaries were prevented from granting and therefore might be proclamated; ours since and could not. Pennsylvania could not grant until September 2, 1775, the time of the confirmation of the divisional lines by Act of Assembly, and this time lasted only until the 4th of July, 1776, and the next opportunity we had was since the opening this land office.
Read, C. J.
The Act of September, 1775, had relation to April, 1775, the time of settlement.
Wright. In Pennsylvania title commences with and is counted from the date of the warrant, in Maryland from the grant. That *100encouraged by 4 Vol. 276 2 he applied here for a patent and thought Maryland surveys and grants were upon an equal footing with those of Pennsylvania.
Bayard for the Wrights. It has been settled by the determinations of the courts that in case of a general warrant the right only commences with the date of the survey. A warrant, if not executed in Maryland in two years, was not void, but only that another person might annul it by taking the same lands; and the practice will be the proper construction of the words of the governor’s proclamations which say they are void. Statute of Elizabeth declares that ecclesiastical leases for more than 21 years “should be void,” yet it has been determined that a lease of such kind for thirty years is good for 21 years.
Miller in reply. These leases áre to be considered as void as to everybody except between the lessor and lessee. The discoverer of lands not paid for in Maryland might have been an inhabitant anywhere else, and such a one, if he lived in Delaware, preferring Penn’s title, might as well take out a warrant in Pennsylvania as in Maryland and have as good a right to them. The terms of the warrants create a condition precedent, and if the Messrs. Wright could not get a patent, they should have done their duty and paid the caution money.
Bassett, C. J.
Can any instance be shown where the officers for the Proprietary of Maryland ever received the caution money and did not give out a patent?
Miller. I know of none, but this is no excuse for the appellants; they ought to have done everything which was required as a condition precedent to their obtaining a title. As the Messrs. Wright’s claim under the Act of Assembly, 4 Vol. 276, s. 1, 2,3 because their warrant and survey is prior to 1760, so this Court will not determine the matter of title between us, but let us also under the same Act, because our warrant is prior to 1760, take out a patent for the same land.
August 5, 1796.
Ki'llen, Chancellor.
The Court are unanimously of opinion that the appeal, Scotten et al. v. Wright, be dismissed and that the other be affirmed. The leading principle upon which the court decide is that they consider that Wright has a legal claim to the property, so that the Commissioners of the land office did *101right in granting the patent. His right is the same as if it were derived from the land office in Pennsylvania.
Read, C. J.
The simple question is, was this warrant of Wright’s legally in existence at the time our Act passed? And the Court think there was nothing done in Maryland, according to their regulations of the land office, which could or did avoid it. It was therefore such a warrant as is described in the second section of the Act alluded to; and Mr. Wright had so far proceeded in Maryland as now to entitle him to have the lands secured, having done there all that could be done. The Court conceive it improper to decide anything except the principal question upon which the whole contest turns. Nothing was done in Maryland to vacate the proceedings under Wright’s warrants. The Court therefore consider this case as clearly within the general legislative provision contained in the second section of our own Act. As to the determination of the Commissioners in granting a patent to James Scotten and others, the Court adjudge that the same be reversed and that the pátent to Wright be affirmed, as they think it to have been improper for the Commissioners to have made orders for patents to two parties contending for the same land.
The other judges accordant.
On the subject of assigning the causes of appeal in future practice, it was observed by Read, C. J., that it was expected on appeals that the appellant in his petition should concisely state his case and assign his causes of appeal, it being in conformity to the practice in England on appeals to the House of Lords as well as directed by the constitution of this state, that a statement of the case should be made by the counsel concerned on either side and furnished to the Court by them for the better information of the Court, of the matters or points in controversy between them. In appeals from the Commissioners of the several land offices, the statement of the case may barely refer to the plot returned.
This reference is to the volume of Delaware Session Laws for the January regular session, 1794. The statute is also in 2 Del. Laws 1174.
Ibid.
Ibid. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487362/ | Bassett, C. J.
There are two points for your consideration: first, whether there was a general or special property in Burton Cannon; second, whether Job Smith took the property out of the possession of B. Cannon with a mind to steal it. In order to convict this defendant you should be convinced Burton Cannon had either a general or special property in the Negro. It is true a man may be guilty of stealing the goods of a person unknown, but then it should be so laid. I apprehend that wherever a man has lost the possession of goods, and another has possession tortiously, the owner may take the possession if he does not commit a breach of the peace. But you are to consider whether B. Cannon had a genéral or a special property in the Negro, secondly whether defendant took the property feloniously.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487363/ | Bassett, C. J.
The Court are of opinion that any declarations or acknowledgments by Elisha Dickerson that the property was or was not his may be given in evidence.
Vide State v. Waples, contra. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487385/ | After the argument the Court took some days to consider the case, and during the term their opinion was delivered by Killen, President of the Court; that the judgment of the court below should be reversed, and the plaintiff have judgment for the recovery of his term. The President did not enter into the reasons, upon which the opinion of the Court was founded, though Read, Chief Justice [of the] Supreme Court, intimated that they considered the judgment as a lien and not discharged by the sale of the administrators.
Note. Bassett, Chief Justice of the Common Pleas, differed in opinion from the Court and was of opinion that the judgment below ought to have been affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494102/ | MEMORANDUM DECISION
MARGARET DEE McGARITY, Chief Judge.
This is a fraudulent transfer action brought by the chapter 7 trustee against various parties to a complicated sale transaction involving most, but not all, of the debtor’s assets before the bankruptcy case was filed. The court dealt with a portion of the transaction on a motion for summary judgment brought by defendant Wells Fargo Bank Wisconsin, NA, (see Memorandum Decision and Order dated October 12, 2005) and deferred the remaining issues for trial. The trial was held over three days on September 6 through 8, 2006, and the parties filed post-trial briefs. This court has jurisdiction under 28 U.S.C. § 1334(b), and this is a core proceeding under 28 U.S.C. § 157(b)(2)(H). This memorandum decision represents the court’s findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052.
BACKGROUND
Many of the facts described below came out of the undisputed facts set forth in this court’s decision on summary judgment. They are supplemented by evidence presented at trial.
The debtor, Art Unlimited, LLC (AU), manufactured artistically decorated (as opposed to team oriented) sports apparel, such as tee shirts, sweatshirts, and fleece items. On May 1, 1996, Tom Butterbrodt, Dan Butterbrodt and Walter Nocito formed the limited liability company that became the debtor for the purpose of operating AU’s business. The LLC acquired a 75% interest in the assets of a partnership owned by Dwight Loveland and Robert Genisot, which had been manufacturing the debtor’s brand of apparel. Mr. Genisot remained active in the business.
According to Mr. Nocito, the newly acquired business was experiencing cash problems in November 1996. In March 1997, the Butterbrodts and Mr. Nocito transferred their interests in the LLC to Galva Foundry Company, formerly an operating entity but then a shell holding company. Each was a one-third owner of Galva Foundry. Robert Genisot maintained his 25% interest in AU. He is not a party to this litigation.
In November 2000, Mr. Nocito and the other members recapitalized AU through a series of agreements whereby approximately $750,000 of cash was infused into the company and approximately $2.7 million of its debt was forgiven by the principals. When Wells Fargo provided the replacement financing, the prior lender, M & I Bank, also ended up writing off about $1 million. Both the Butterbrodts and Mr. Nocito guaranteed the Wells Fargo debt.
As a result of the recapitalization, Wells Fargo calculated that AU would have positive net worth of more than $3.2 million. Mr. Nocito testified he also believed that AU had a positive equity after the recapitalization, even though the Recapitalization Agreement stated AU had no value at that time. (Ex. #3, Recapitalization Agreement dated November 1, 2000, ¶ 1.6) AU’s assets secured the debt to Wells Fargo, and AU’s debt was guaranteed by Mr. Nocito, up to $1.15 million.1 AU’s trade payables approximated $800,000 at the time. Mr. Nocito borrowed money personally from Wells Fargo and executed a separate note in the amount of $950,000. This *703note was secured by marketable securities owned by Mr. Nocito personally and valued in November of 2000 between $1.2 million and $1.3 million. However, they were worth considerably less when liquidated (approximately $920,000, according to Mr. Nocito’s counsel’s brief) and applied to the AU debt the following year.
In the Recapitalization Agreement, AU’s officers acknowledged they had actively sought to find a buyer for the business for several years but could find no entity or person willing to pay enough to pay off the outstanding indebtedness. They further admitted that they would all have to contribute some or possibly all of the amount guaranteed to cover the bank debt. (Ex. # 3, Recapitalization Agreement dated November 1, 2000, ¶ 1.5)
Shortly thereafter, the Butterbrodts became disenchanted with the business and an open hostility developed between them and Mr. Nocito. The Butterbrodts exited the business and paid the bank $750,000 in cash on their guarantees, which were released. The recapitalization left Galva Foundry Company as 87.5% owner of AU, with the balance being owned by Robert Ginsot. Apparently, Walter Nocito became the sole owner of Galva.
According to Stephen Wald, the president of Naturally Knits, a long time supplier of the debtor and substantial creditor, the business always suffered problems and was dysfunctional from its inception. After the November 2000 recapitalization in which the Butterbrodts exited the business, forgiving all debt and paying the bank $750,000 in cash on their guarantees, problems with paying creditors continued. Mr. Wald was getting financial reports from the company as a key trade creditor, and these showed no improvement in the business operations. He believed the public accounting firm, Grant Thornton, could not close the books for the year 2000 and was generally at odds with Mr. Nocito over a “going concern” qualification. Mr. Wald, who had been in the fabric business since 1975, was of the opinion that inventories of AU were perpetually carried at cost even though they were dated and were probably worth only a small percentage of what they were carried on the books by AU. He described this accounting method as the FISH method: First In, Still Here. He also testified that a substantial write down was in order, not only because of the age of the inventory, but because older inventory was poorly stored in an inadequate facility. He considered about 85% of the inventory, “junk.”
Although Mr. Nocito had forgiven the obligations owed to him by AU, he was not relieved of the obligation to Wells Fargo, which had grown to approximately $1.1 million, and which he had borrowed personally at various times and lent to the debtor. He had also guaranteed all of the obligations of the debtor to Wells Fargo, and the guarantee was collateralized by any and all collateral, i.e., AU’s assets and his personal securities held by the bank.
By February 2001, AU was out of compliance with its borrowing base obligations (credit line of $721,000) and the parties entered into a forbearance agreement. As part of the forbearance agreement, Wells Fargo required financial statements from AU and daily borrowing base certificates.
Mr. Nocito decided that AU should liquidate some of its assets in an effort to pay down its debt to Wells Fargo. At the end of March and in the first few days in April 2001, negotiations took place between Mr. Nocito and Steve Scharpf, who had formed and owned with his wife Art Unlimited Sportswear, LLC, (AUS) for the purchase of assets. Phil Neary, the loan officer at Wells Fargo responsible for the AU loan, and Wells Fargo’s attorney were kept apprised of the negotiations and attended at *704least some of the negotiation meetings. Eventually, a transaction was structured for AU to voluntarily surrender certain assets selected by Mr. Scharpf to Wells Fargo. The bank then entered into a sales transaction with AUS for these assets, primarily real estate, leases, samples, raw materials, work in process, finished goods and other collateral.
According to Mr. Scharpf, just prior to closing, Mr. Nocito insisted that he be paid a substantial portion of the purchase price by way of a “Consulting Agreement.” (Group Ex. # 11, Ex. # 111) The amount to be paid for this part of the transaction was $600,000 at closing, plus a percentage of future sales. Mr. Scharpf did not care how the transaction was structured, as long as it did not affect the total amount he was spending. He knew that Wells Fargo would be receiving the $600,000 due under the “Consulting Agreement” at closing. Wells Fargo’s attorney testified he had no objection to the structure of the transaction for the same reason. The bank would be receiving, one way or another, all of the funds from the transaction, plus the additional funds from a $500,000 loan by Associated Bank to Galva, which Wells Fargo required for a simultaneous forbearance agreement. Funneling the funds paid for the “Consulting Agreement” through Galva made economic sense in that it allowed use of a substantial tax benefit due to the operating loss carryovers of that company, rather than having Mr. Nocito declare the entire amount as earned income.
The “Consulting Agreement” also provided that 2.5% of net sales, defined in the agreement, would be paid to Galva for two years, up to an additional $600,000. Apparently, AUS paid either $245,000 on this obligation (Wells Fargo brief and Mr. Scharpfs testimony), or $224,000 (Trustee brief), and the proceeds went to Associated Bank to satisfy Galva’s obligation. The court accepts the $245,000 figure as those two parties are in a better position to know how much was paid on this portion of the obligation. Wells Fargo did not receive these funds directly, but reduction of the Associated Bank loan to Galva freed up Mr. Nocito’s securities to satisfy his remaining obligations to Wells Fargo. The trustee believes these should have been part of the purchase price paid to the debtor for its assets but were diverted to Mr. Nocito’s and Galva’s personal obligations.
At the closing Mr. Scharpf and AUS paid approximately $1.5 million in cash and executed a series of notes for assets and made a commitment to purchase inventory from AU, if needed, in the future. AU retained its accounts receivable, payable to a Wells Fargo lockbox, and certain inventory which was to be liquidated later if not sold to AUS. The April 9, 2001, transactions also included an Amended Forbearance Agreement (Ex. # 8, Tab 14) in which Wells Fargo agreed to forebear from taking further action against AU until July 15, 2001, in order to give AU additional time to liquidate its remaining assets and wind down its ongoing business.
During that period, AU agreed to continue its operations, to incur only liabilities it could pay, and to provide a budget and weekly reports to Wells Fargo. In consideration for the Forbearance Agreement, AU and Mr. Nocito agreed to make a lump sum payment to Wells Fargo in the amount of $1.1 million for satisfaction of Mr. Nocito’s personal note and thereafter, for application to the AU note guaranteed by Mr. Nocito. The $1.1 million came from Galva from the initial $600,000 “Consulting Agreement” payment and the $500,000 proceeds from Galva’s loan from Associated Bank, both paid at the time of closing. After the fact, Mr. Neary asked *705for a written direction from Galva signed by Mr. Nocito authorizing the draft of the Galva account to pay Mr. Nocito’s obligation. Mr. Nocito complied.
This court determined on Wells Fargo’s previous motion for summary judgment that the $500,000 loan proceeds that Galva borrowed from Associated Bank and transferred to Wells Fargo to satisfy Mr. Nocito’s personal loan was not a fraudulent transfer that the trustee could avoid because property of the debtor was not transferred. The $600,000 from the “Consulting Agreement,” which went to Galva and then to Wells Fargo, remains at issue, and the trustee also wishes to recover other amounts paid under the percentage of sales portion of the agreement.
According to Mr. Nocito, the bank’s officer, Mr. Neary, was aware of the “Consulting Agreement” and had a copy. Mr. Noeito’s attorney expressed concern about the “Consulting Agreement” being a fraudulent conveyance at the time of the closing in front of the bank officer and the bank’s attorney, or perhaps months later — parties do not agree. Mr. Scharpf did not expect any consulting services and indicated that neither Galva nor Mr. Nocito provided any services under the agreement. According to Steven Wald, the trade creditor of AU who participated to some extent in negotiations for the sale of the business, the relationship between Messers. Nocito and Scharpf had deteriorated to such a point that any consulting arrangement would have been impossible. When Mr. Wald tried to mediate the sale agreement, he had to put the two men in separate rooms because having them together had an incendiary effect.
After the sale, matters only got worse. Indeed, Mr. Scharpf acknowledged that he considered Mr. Nocito a competitor as Mr. Nocito was selling some of the same garments as AUS, sometimes to the same customers. This was probably true because Mr. Scharpf did not purchase as much existing inventory as Mr. Nocito had hoped, nor as fast as he hoped. Mr. Scharpf took all current inventory and raw materials at the time of sale, leaving Mr. Nocito with about 153,000 garments to liquidate, all older merchandise.
According to Mr. Wald, Mr. Nocito admitted to him that he wanted to liberate the securities he had pledged to the bank on his personal note. As facilitator of the transaction, Mr. Wald originally thought he was going to be paid his AU trade debt. Just to be safe, however, he negotiated a mediation fee approximately equal to the amount AU owed his company for his part in the transfer, but he never received this either. Because relations between Messers. Nocito and Scharpf had deteriorated during the course of negotiations, by the time of closing, Mr. Wald had become convinced that creditors other than Wells Fargo and Mr. Nocito would receive nothing from the transactions. Although he was involved in the early phases of the negotiations, Mr. Wald only found out about the consulting agreement during discovery proceedings in this action.
After closing, AU continued to liquidate its inventory. Due to the continued deterioration of the relationship between the principals, AUS ultimately declined to purchase additional inventory from AU (an offer to pay 40% of cost for the remaining raw materials and inventory was rejected by Mr. Nocito) but it did pay the percent of profits required by the consulting agreement, assigned to Associated Bank by Galva, to complete payment of the purchase price. The liquidation of Mr. Nocito’s securities was applied to AU’s debt in accordance with his personal guarantee, leaving Wells Fargo about $400,000 short on the AU debt.
*706AU filed for chapter 7 bankruptcy relief on April 5, 2002.
DISCUSSION
Because of the complexity of this sale and the routes traveled by the funds it generated, it is helpful to collapse the transaction to its essence, i.e., (1) what was the value of what the debtor parted with, (2) who provided the consideration for the debtor’s assets, and (3) who got the money for them? See, e.g., In re Leneve, 341 B.R. 53 (Bankr.S.D.Fla.2006) (essential comparison in constructive fraudulent transfer inquiry is “what went out” with “what was received”). The analysis is also useful in determining whether actual fraud was committed.
The first question is relatively simple: Steve Scharpf and AUS paid cash or executed notes totaling $1,987,677.50 (“DEAL STRUCTURE,” Ex. #8, Tab 13), plus approximately $245,000 as a percentage of sales after closing. The court is satisfied that this total, $2,232,677.50, is the value of the assets the debtor parted with. Given how heavily the debtor had been marketed, how vigorously the deal was negotiated, and the fact that total proceeds were less than what Wells Fargo was owed, compels a finding that the total purchase price was equivalent to the value of the debtor’s transferred assets. None of the consideration related to Mr. Nocito’s services under the “Consulting Agreement”; more about that later. Galva provided $500,000, which it borrowed from Associated Bank, and the court has already decided this was not a transfer of the debtor’s interest in property. This amount induced the bank to go along with the deal because it was to receive considerably less than the amount of its claim, but it was not part of the value of the debtor’s property.
The second question, who paid, is also simple. Mr. Scharpf and AUS provided all consideration, except for $500,000, which was borrowed by Galva and secured with Mr. Nocito’s personal securities, thanks to a subordination agreement by Wells Fargo to make the Galva loan happen.
Who got the money, which goes to the heart of the trustee’s action, requires a more circuitous answer. Amounts paid or notes executed that were allocated to hard assets, the $1,987,677.50, went to Wells Fargo at closing to reduce its secured claim against the debtor. This transfer is not challenged by the trustee because the debtor transferred its assets and the debt- or got the money. The $500,000 from Galva that went toward Walter Nocito’s personal notes did not come from the debt- or, and the court has already denied recovery by the trustee on summary judgment. The remaining $600,000 allocated to the “Consulting Agreement” was for the debt- or’s assets and was paid by the buyer at closing but it went to Galva Foundry. Galva, acting as a shell and a conduit and pursuant to Mr. Nocito’s instructions, immediately paid these funds to Wells Fargo to pay down the personal obligation of Walter Nocito. The debtor was not obligated on these notes, nor were its assets security for their payment. Therefore, Mr. Nocito got the $600,000. This is one of the two targets of the trustee’s avoidance action.
Who received the $245,000 for a percentage of sales after closing is similarly circuitous. These funds went to Galva under the “Consulting Agreement.” The Consulting Agreement was assigned by Galva to Associated Bank, and these payments went toward the $500,000 loan. This loan was also secured by Mr. Nocito’s personal securities, and Wells Fargo had subordinated its interest in those securities to the extent necessary to facilitate the loan. As the Associated Bank loan was paid down, the personal securities were released. *707Again, this was part of the purchase price of the debtor’s assets, but Galva got the money, which then traveled to Associated. This time, however, the released securities were used to pay down Mr. Nocito’s guarantee on the AU debt. Simultaneously, the debtor’s debt was reduced by the value of the securities released, so both the debt- or and Mr. Nocito got the money.
Standards for Avoidance of Fraudulent Transfer tonder 11 U.S.C. § 548(a)(1)(A).
Section 548(a)(1)(a) in effect at the time of the debtor’s filing provides:
(a)(1) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily—
(A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made....
11 U.S.C. § 548(a)(1)(A).
The trustee must prove by clear and convincing evidence that all elements of this section are met. Frierdich v. Mottaz, 294 F.3d 864 (7th Cir.2002). It is undisputed the transfer occurred within a year of filing.
Mr. Nocito structured this deal. He controlled both the debtor and Galva. Neither the bank nor Mr. Scharpf wanted or needed a consulting agreement, and they had nothing to do with the value he assigned to it. The bank’s summary of the deal includes this $600,000 in the value of the assets transferred. One purpose of the “Consulting Agreement” was to save personal income taxes, it cost Mr. Scharpf nothing, and did not reduce the proceeds going to the bank to pay down the indebtedness of one or both of its borrowers. No one believed there would actually be any consulting, let alone $600,000 worth, because of the hostile relationship of the parties, notwithstanding Mr. Nocito’s averred availability, and neither does the court.
Mr. Nocito controlled the bank account to which the $600,000 was deposited. He instructed Mr. Neary to pay his personal note, and Mr. Neary had no choice but to do so. Mr. Neary believed there would be enough to pay unsecured creditors, if Mr. Nocito’s sales went as anticipated and if Mr. Scharpf purchased a substantial amount of the remaining inventory (up to $600,000 per the “Consulting Agreement,” which would have paid off Associated Bank and released all of Mr. Nocito’s personal securities), and perhaps Mr. Nocito believed this as well. The court is skeptical of Mr. Nocito’s beliefs, however, given the age and condition of what he was trying to sell and what he actually did. Mr. Nocito made sure he received as much as possible as early as possible — before $800,000 to $1,000,000 in unsecured trade creditors received a dime. Not coincidentally, his personal notes just equaled the amount received from Galva, plus the advance for the “Consulting Agreement.” Structuring the transaction to put his personal obligations ahead of the debtor’s obligations to trade creditors is consistent with the testimony of Mr. Wald, who stated Mr. Nocito wanted only to liberate his securities, not to pay trade creditors. Mr. Nocito may have had no intention to defraud trade creditors, but the court finds he did intend to hinder and delay them. Furthermore, even though Galva was the initial transferee, Mr. Nocito was a subsequent transferee of the benefit of these funds. See 11 U.S.C. § 550(a)(2). Mr. Nocito was well aware he was acting to the detriment of trade creditors, he intended *708to do so, he did not act in good faith in structuring the transaction, and he did not provide value for the transfer from Galva; therefore, he is not entitled to the protections of 11 U.S.C. § 550(b) as a good faith transferee. The trustee has met his burden of proof by clear and convincing evidence and is entitled to judgment against Mr. Nocito for $600,000. Likewise, the actual intent to hinder and delay creditors is imputed to Galva Foundry Company, Inc., and the trustee is entitled to judgment against it.
Once his personal notes were paid, Mr. Nocito had to deal with guarantees that he or his securities were obligated to satisfy. The post-closing sales amount of $245,000 fall into this category. The payment was for the debtor’s assets, and the proceeds went through Galva and Associated Bank, but they released assets that reduced the debtor’s indebtedness to Wells Fargo. Therefore, the debtor eventually received the benefit of these funds, and there was no fraudulent transfer as to Galva and Mr. Nocito.
Standards for Avoidance of Fraudulent Transfer under 11 U.S.C. § 548(a)(1)(B).
Even though the trustee is entitled to recover from Mr. Nocito, he also wishes to obtain judgment against Wells Fargo, which after all, received all the money. The court determined after trial that the bank, in the person of Mr. Neary, did not intend to defraud trade creditors, and he had reason to believe at the time of the transfer that circumstances could result in everyone being paid. Therefore, in order to prevail against the bank, the trustee must prevail under the theory of constructive fraud, 11 U.S.C. § 548(a)(1)(B). After eliminating the excess verbiage not applicable to this case, the trustee must prove by clear and convincing evidence that there was a transfer of an interest in property of the debtor, the transfer was for less than reasonably equivalent value, and it occurred while the debtor was insolvent.2 It is undisputed that the transfer occurred within a year of filing the chapter 7 case. The trustee must also prove that the bank is a proper party for recovery under 11 U.S.C. § 550(a).
Transfer of Interest of Debtor in Property.
The debtor parted with assets, the value of which included the $600,000 that went to Galva pursuant to the “Consulting Agreement.” The summary of the transaction, contained in Exhibit #8, Tab 13 (“DEAL STRUCTURE”), shows the assets transferred for cash and notes of AUS/ Scharpf, with values attributable to various categories of assets. This total is further broken down into cash allocated to the $600,000 to Galva and other payments to the bank. In other words, Galva was receiving the funds, but it was for specific assets of the debtor. Because of the asset *709values and the hostile relationship between the parties, the money had nothing to do with services made available by Walter Nocito. Thus, the first prong of the test for constructive fraud is met.
Reasonably Equivalent Value.
Finding that Mr. Nocito personally received the benefit of the $600,000 paid for the debtor’s assets does not necessarily compel a finding that the debtor did not receive reasonably equivalent value. Transfers, loans, and guarantees between and among affiliated entities and individuals that are not dollar for dollar exchanges may sometimes provide a collateral benefit that does not result in a constructively fraudulent transfer. See, e.g., In re Seaway Int’l Transp., Inc., 341 B.R. 333 (Bankr.S.D.Fla.2006); (“reasonably equivalent value” of transfer may be direct or indirect); In re Gulf Northern Transp., Inc., 323 B.R. 786 (Bankr.M.D.Fla.2005) (same); In re BCR Mgmt., Inc., 320 B.R. 265 (Bankr.D.Del.2005) (court must examine all aspects of a transaction to determine “reasonably equivalent value” of benefits received by the debtor). Sometimes a loan to one entity, perhaps guaranteed by another that does not receive the loan proceeds, may help several related businesses, resulting in an economic benefit, albeit indirect, to all. Such a transaction is for “reasonably equivalent value” and will not be set aside by the trustee. See, e.g., In re Jumer’s Castle Lodge, Inc., 338 B.R. 344 (C.D.Ill.2006) (“synergy” within corporate group provided reasonable equivalent value); In re National Century Fin. Enters., Inc., 341 B.R. 198 (Bankr.S.D.Ohio 2006) (focus is on indirect eco nomic benefit to debtor, not third party). That did not happen here. Funds from the sale of the debtor’s assets went to pay the debts of the principal, and the trade creditors were left completely out of the mix. The transfer of the $600,000 was not for “reasonably equivalent value,” and the trustee has met the second prong of the test for constructive fraud.
This is not true of the $245,000 paid on the “Consulting Agreement” as a percentage of sales after closing. The dollar for dollar release of Mr. Nocito’s marketable securities, which were then applied to AU’s debts to Wells Fargo pursuant to Mr. Nocito’s guarantee, did result in reasonably equivalent value to the debtor. This transfer cannot be avoided.
Insolvency.
Whether an entity is insolvent at the time of a challenged transfer under 11 U.S.C. § 548(b), or becomes insolvent as a result of the transfer, is a balance sheet determination; that is, whether the entity’s debts exceed its assets. 11 U.S.C. § 101(32). Generally Accepted Accounting Principles require that inventory of finished goods and raw materials be valued at the lower of cost or market, and this issue was vigorously contested at trial. The debtor showed all of its inventory at cost and apparently did not make it a practice to write down the cost of merchandise not sold or raw materials remaining at the close of a season.
Both Mr. Nocito and Mr. Neary asserted that they believed that the liquidation of the debtor’s assets would be more than enough to pay all the creditors, making AU a solvent entity. Mr. Neary was credible in this regard, and he was receiving optimistic information from Mr. Nocito. Just weeks prior to the closing, Mr. Nocito provided Wells Fargo with an estimate of expected revenue from the sale of collateral resulting in possible “excess cash” of $1.15 million. Wells Fargo’s expert, Tracy Coenen, reconstructed the debtor’s balance sheet and testified that in her opinion following the transactions, AU had a balance sheet equity of at least $1,156,184, and as *710much as $1,692,682. She stated there was nothing in the corporate records to indicate that inventory should be valued at anything but cost. However, according to her mathematical calculations, the inventory could have been discounted as much as 60% to 74% and the company would still be solvent from a balance sheet standpoint.
On the other hand, the trustee’s expert, David Omachinski, former CFO and COO of Oshkosh B’Gosh and now a certified public accountant in private practice, testified as to how the value of the inventory should have been written down and liquidated rather than accumulated for years as AU had done. It had been the practice of his former employer to dispose of unused fabric at about 20% of cost, and leftover completed goods at close to cost, except for certain “classic” styles. Liquidation should be done promptly at the close of the season to maximize value. Since the fabric was not current, he estimated it was worth only about 10% of cost. He believed finished garments should be written down to 40% of cost. (Ex. # 10) Mr. Nocito’s, and the bank’s, argument was that AU had a different type of apparel, and older styles could be brought back and sold. The fact that Mr. Nocito had made some sales of prior years’ merchandise, unquantified at trial, was offered as proof of this distinction. Nevertheless, Mr. Scharpf testified he had seen sales results, and it was minimal. Furthermore, the quantity of old inventory and fabric carried on AU’s books shows that sales of prior years’ inventory was never a lucrative solution to leftovers.
Another factor showing the need for a substantial writedown was the conditions under which prior years’ inventory and fabric was kept. Whereas the factory was clean, well organized, and well maintained, the warehouse storing prior years’ goods was harshly criticized by two witnesses who had been there. Messers. Scharpf and Wald said the fabric and garments were not protected, and the warehouse was dirty and infested with wildlife. Mr. Neary disagreed, noting that he observed no raccoons while he was there, but the other two witnesses are in the fabric and apparel business. They are more likely to know how such goods should be stored, and the court found them more credible and their assessment of conditions persuasive. Mr. Scharpf believed that finished goods are only salable for two or three years; after that, dry rot sets in. In a memo to the bank, he stated that everything left was two to ñve years old, and he testified that some items might have been as old as seven years.
The sheer magnitude of the older garment inventory, approximately 153,000 items, indicates that Mr. Nocito would be very hard pressed to recover the cost at which they were carried, even if they were offered at an attractive discount.3 If he had presented evidence of thousands of orders, the court might have given credence to his optimistic claims, but he did not. It is also important that no manufacturing was taking place to use up the prior years’ fabric, thus justifying a substantial writedown. Finally, the remaining inventory was sold to a liquidator for $197,000, which no one believed was out of line for what a liquidator pays for such materials. While there is no question that liquidation brings bottom dollar, this is a far cry from the $1.8 million to $1.9 million at cost for the inventory not purchased by Mr. Scharpf. The court was therefore convinced that at the time of the transfer, raw *711materials and finished goods should be valued at the $1,574,512 estimated by Mr. Omachinski, not cost of approximately $3.8 million, and the company had a negative value of ($652,550). (See Ex. # 10) Thus, AU was insolvent at the time of the sale transaction, and the third prong of the constructive fraud test is met.
Liability of Transferee
This does not end the inquiry, however. We have already determined that Mr. Nocito is liable for the avoided transfer under 11 U.S.C. § 550(a)(2). Is the bank similarly liable for the same $600,000? If so, of course, only one recovery is allowed. 11 U.S.C. § 550(d).
Section 550(b) provides that the trustee may not recover an otherwise constructively fraudulent transfer from
(1) a transferee that takes for value, including satisfaction or securing of a present or antecedent debt, in good faith, and without knowledge of the voidability of the transfer avoided; or
(2) any immediate or mediate good faith transferee of such transferee.
11 U.S.C. § 550(b).
The initial transferee of the $600,000 under the “Consulting Agreement” was Galva, and the bank was an immediate transferee (if the transfer is deemed from Galva to Wells Fargo by virtue of the withdrawal from Galva’s account) or a mediate transferee (if the transfer is deemed to be from Galva to Mr. Nocito to the bank for Mr. Nocito’s benefit). The payment was for an antecedent debt, and Mr. Nocito’s personal obligations were reduced accordingly.
Other circuits have held subsequent transferees of fraudulent transfers to higher standards than does the Seventh Circuit with respect to how much oversight the subsequent transferee is to do with respect to an avoidable transaction. Cf. In re Southern Indus. Banking Corp., 115 B.R. 930 (E.D.Tenn.1990) (noting the majority of courts take the approach that if the entity being sued to recover the preference or fraudulent transfer is technically the “initial transferee” (for example because it was the payee of the checks at issue), but it never obtained control over the funds and acted merely as a financial intermediary, then one looks to equitable factors, such as their good faith, in deciding whether or not to hold them liable). The minority approach taken by the Seventh Circuit is to simply declare them not a transferee at all because of lack of “dominion and control.” See Bonded Fin. Servs., Inc. v. European Am., 838 F.2d 890 (7th Cir.1988).
The Bonded court refused to accord transferee status to the bank that acted merely as a financial intermediary which held the check only for the purpose of fulfilling an instruction to make the funds available to someone else. This is what Wells Fargo did when it applied the $600,000 from Galva’s account as instructed. The Seventh Circuit also points out that an immediate or mediate transferee is protected by 11 U.S.C. § 550(b)(1) if it gives “value,” not necessarily “value to the debtor,” the term used in 11 U.S.C. § 548(c) to protect an initial transferee. The Bonded court recognized that “monitoring of earlier stages is impractical, and exposing them to risk on account of earlier delicts would make commerce harder to conduct.” Id. at 897. Wells Fargo gave value when it paid down loans that were not the debtor’s.
At the time of closing and the $600,000 transfer, the court is satisfied that Mr. Neary’s participation in the transaction was done in good faith. The trustee argues that the bank should have discerned that AU’s debt to Wells Fargo was not *712being reduced dollar for dollar by the amount of values assigned to the assets being transferred by the debtor. He contends that the bank should not have allowed the $600,000 to be diverted to Mr. Nocito’s personal obligations. Hindsight, of course, reveals that the deal was not proper, but it does not necessarily constitute lack of good faith on the part of the bank. Running the proceeds from the “Consulting Agreement” through Galva to save income taxes made good economic sense, and saving taxes meant that Mr. Nocito might be better able to work off his guarantees of AU’s obligations. The court has held that the debtor was insolvent at the time of sale because much of the inventory shown at cost was worth far less, but Mr. Neary had no reason to know that when the sale took place. He thought everything looked fine, and Mr. Nocito had rosy projections of what he would realize from retained inventory. And what if Mr. Neary had refused to consent to the sale as structured by Mr. Nocito? This sale was the only game in town, the bank was receiving all the money, plus the $500,000 from the Galva loan, and its loans to various parties were still not satisfied. Mr. Neary was trying to obtain the best possible benefit for the bank, which he did. If the parties had overcome their differences to work together rather than as competitors, if Mr. Scharpf had purchased more inventory at cost, if Mr. Nocito had accepted the late offer of forty cents on the dollar for remaining inventory, or if some other positive event had occurred, trade creditors might well have benefitted. Mr. Neary’s attempts to salvage the parties’ business relationship after the sale were also fruitless, but it showed his attempts to obtain the greatest possible recovery of the debtor’s assets and that he was not complicit in any avoidable transfer concocted by Mr. Nocito or Galva.
CONCLUSION
For the reasons stated above, the plaintiff is entitled to judgment for $600,000, plus costs, against defendants Walter L. Nocito and Galva Foundry Company, Inc. The action against defendant Wells Fargo Bank Wisconsin, NA, is dismissed. Separate orders for judgment and dismissal will be entered accordingly.
. The guarantee became unlimited when the assets were sold.
. (a)(1) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily—
(B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation;
(II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital;
(III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured.
11 U.S.C. § 548(a)(1)(B).
. This was a major source of Mr. Scharpf’s ire, as he claimed the same customers were confused about the difference between AU and AUS. However, the name "Art Unlimited” was not sold as part of the sales agreement. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487365/ | Bassett, C. J.
This Court can only try under this Act in the manner it used to other offenses before this Act, and they in no case allowed the peremptory challenge. In point of reason, defendant is entitled to it, but the Act of 1789 prevents the allowance of it.
*162Mr. Tennent, the master of the Negro, was offered as a witness by defendant’s counsel.
Attorney objected that he is interested in the event of this suit; for he is to lose the one-third of his value at all events in case of a conviction, and I think the whole, for the act directing the Negro to be valued and two-thirds to be paid the master can not be carried into effect in this particular under the laws now in force. Witnesses are admitted in criminal cases ex necessitate though interested, but here there is no such necessity, there being abundant evidence to be had of the matter. The rules are the same in regard of interest in criminal as in civil cases, 2 Hawk. P.C. 610. The person whose bond is forged is no evidence to prove the forgery.
Vining and Peery. Cases as to what is or is not a disqualifying interest are much changed of late. One underwriter or wagerer may be witness for another, 3 Term 27. Tenants, servants, masters etc. may be witnesses. Trials per pais, 3 Term 308, members of a corporation, or inhabitants of a parish allowed for the corporation or parish, 3 Term 309. A master may be a witness to prove the delivery of property to a servant, of which he is robbed. 3 Term 312. So tenant at will to prove livery and seisin of the same lands, 3 Term 314. It is the constant practice to prove the property of goods stolen by the owner; to prove the force, by the person ousted. The owner of a note may prove the tearing upon an indictment therefor. No objection to witness that he is to receive a public reward in case of conviction.
Per Curiam. Bassett, C. J.
The case of master and servant is not like this case. The cases of interest in the books entirely differ from the question now before us, which is whether a master can be a witness for his slave in a capital case; it is immaterial whether there were witnesses present or not. Slavery is horrible, but it would be more horrible if the master was not allowed to be a witness in favor of his slave. Let the master’s interest be what it will, it is nothing when compared to the life of the prisoner. If there are cases where interested witnesses are allowed to criminate, much more are they allowable to prove innocence. We are of opinion Mr. Tennent is a competent witness, his credit to be left to the jury.
Mr. Attorney [General] in his opening to the jury insisted against the opinion of the Court that Mr. Tennent was not a legal witness — which Wilson resisted by arguing the case and citing authorities to the jury.
There was a probable alibi proved, and the jury found the defendant not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487366/ | Bassett, C. J.
The Court consider they have no power to make a thing good that is void. And this Act says that every such instrument is void. We are of opinion the boy must be discharged. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487367/ | Per Curiam.
We have said in all the counties that you may make the suggestion at any term after the death, but, when it is made and no proceedings had before another term, the cause is abated.
Absente Johns, J., this term, neither in sickness nor trouble, ut audivi from Mr. Ridgely, but increasing his estate. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487368/ | Read, C. J.
Little is to be said by the Court on the law, it being rightly stated by the counsel for the State and admitted by defendant’s counsel, except Sir John Chichester’s Case, which defendant’s counsel think was too severe, and they relied [on] a *170note from Alleyn. He made his report a century ago. Judge Foster recites this case and admits it, page 260.
It may seem necessary for the Court to say whether this case is (believing all the evidence to be true) manslaughter or not. Every kind of diversion on this occasion more than their duty was folly. You are to consider whether this wanton conduct of defendant followed by such an accident was not likely to be accompanied by such consequences. We cannot help saying that if you believe the evidence, it was a wanton, foolish, and unlawful act that defendant was guilty of with this man. The Court will only mention one case in Fost. 261, where the killing a child standing by at the sport of cockthrowing was accounted manslaughter. Now, whether you call the using a gun in this manner a playful or funny manner, it is an improper and unlawful manner.
If you think on the second point that this wound was not the mediate or immediate cause of the death, you will weigh that matter; it is proper for your consideration. You hear the old woman saying that his principal complaint was a pain in his breast, and the doctor also says his other complaint was the principal one.
Verdict, not guilty.
The Attorney General applied under Article VIII, section 8, for a certificate.
Wilson observed that it was certainly discretionary to certify or not. Even where the court were convinced that there was probable cause for the prosecution, they are not bound to certify, and that in this case a certificate must send the man to prison and to the benefit of the insolvent acts.
Read, C. J.
We think ourselves bound to say there was probable cause, but the Lxvy Court will perhaps give relief.
Clayton, J.
Although we certify, I am clearly of opinion that the matter is discretionary even where there [is] probable cause appearing to the Court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487369/ | Booth, C. J.
We think the law is designed to prevent negro evidence in favor and against a white person, and that this witness is inadmissible. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487370/ | Booth, C. J.
The Court think from everything laid before us that there is a presumption in favor of Caesar’s freedom and allow him his oath.
The Negro was sworn and showed sufficient ground of apprehension of danger, but mentioned no threats from defendant.
*219Bayard insisted defendant could not be held to the peace under the Act of Assembly, 1 Del.Laws 52. Surety of the peace is only to be in consequence of threats, and that it had often been so determined, but the Court thought there was nothing in the objection and directed the recognizance to be taken. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487371/ | Booth, C. J.
The Court have taken the case against Hill and others into their consideration, and as far as respects the Attorney General alone, we are of opinion that each defendant is to pay as if there had been several indictments. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487372/ | [Per Curiam.]
The judgment of the Common Pleas was reversed unanimously, and the judgment obtained by Wright on which the sheriff sold to him held to be a lien on the lands of *228intestate in the hands of administrator, which could not have been defeated by any subsequent sale of an administrator.
Having opened the argument, and being much exhausted by the heat of the day, I could not take the arguments of other counsel but will subjoin extracts from my own notes.
Wilson. The arguments on this record may possibly be directed to’two points: whether the plaintiff’s judgment was a lien upon the lands, for, if it was, he has the title; and whether defendant’s deed has relation to the day of sale by administrators, for, if it has not, then plaintiff must recover upon a supposition that the lands vested only as chattels in the administrators and were bound only from the delivery of the fieri facias for residue.
The first question divides itself into two: first, whether lands can be taken in execution under a judgment against administrators; secondly, whether such judgment was a lien, or the delivery of the execution the lien.
That real property in the defendant’s hands is bound by a judgment against him from the first day of the term, except as to purchasers for valuable consideration, and then from the date, sufficiently appears from practice, 3 Bl.Comm. 420, 2 Bac. Abr. 363,1 Dali. 451, under the laws of England and also from the constant exception, in all the fee laws enacted these fifty years, of poundage to sheriffs upon prior judgments. When the debtor is dead, the heir is, in England, chargeable as to his inheritance for obligations in which he is named. This method is rarely pursued in Delaware, because the heir cannot withhold the lands from executor or administrator, who can sell them from him, and is never without assets while the lands remain. The Orphans’ Court are to see that the personal estate is first applied, but the lands are also assets. It appears by old Acts of Assembly, 1 Body Laws 49, 116, 79, that lands were formerly appraised and held as liable as chattels to be sold. Nor does the Act for taking lands in execution exclude the case of judgments against executors or administrators, and the executions in such cases are uniformly, as in other cases, against goods and chattels, lands and tenements. This usage has not been legally immemorial, 2 Bl.Comm., yet like the private examinations of femes coverts by justices, [1] Dali. 14, or common recoveries in England, too many titles depend on it to be shaken. So there is no law for slavery in this state, [1] Dali. 167, 132, 133, yet it is legal. Nor can the practice be termed "unreasonable because lands vest in the heir; for that may be the case, he may “have a fixed right of enjoy*229ment,” and yet the lands may, in another sense of the word, be vested in the executors or administrators for payment of debts. Personal property is said to be vested in executor etc. from death of testator, 2 Morg.V.M. 187, and he may have trover for chattels, though he never possessed them. A legacy given to be paid at twenty-one, 1 Burr. 227, is a vested legacy, yet is, as other personal estate, vested in executor for payments of debts. If then the lands could vest as assets in administrator’s hands, and be taken in execution, they were secondly also bound by judgment and not execution. Lands, when vested in heir as assets, and taken in execution as such, are bound from judgment; so ought they to be when vested in executor. The executor or administrator here represents the deceased fully and, therefore, should be bound like him or his heir as to lands by the judgment. Lien on lands is by the common law, 2 Bac.Abr. 363, and the administrator not being named in the 29 Car. II [c. 3 (1677) ], the lands must be bound from the first day of term. It is for the encouragement of commerce that lands are subjected to judgments, and that goods are not bound until the writ is delivered, and the same reason will extend to the case of executors and administrators; of this opinion was Shippen, [1] Dali. 132, 133, and their law is, verbatim, the same as ours for sale of lands. And the Act, 4 Body Laws 66,2 that a verdict or reference only shall bind lands when against executors, is a legislative construction, though passed since this action was brought.
The rule is that the several parts and ceremonies of a conveyance shall relate to the most substantial or principal part, 4 Burr. 1962, 5 Burr. 2787. Admittance to surrender. Livery to feoffment etc. This sale was a paroi agreement and within the Statute of Frauds, 1 Esp.N.P. 12, 5 Burr. 2639. Its being in pursuance of an order of Orphans’ Court is only like an interlocutory order, and not like a decree, and does not take it out of the Statute, Pow.Con. 272, 273, and, therefore, is ineffectual without the deed, which is the substantial part.
This is a reference to the rare volume of 1793-1795 Session Laws. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487374/ | Per Curiam. Booth, C. J.
(To Mr. Ridgely:) Sir, you need not argue it. The Act of Assembly says the prosecutor not a prosecutor and does not require a prosecutor on every indictment. Defendant may prove there is a person prosecuting, and then he must indorse. We cannot presume it; the grand jury may have found the presentment on their own knowledge or have sent for witnesses. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487375/ | Booth, C. J.
(Charge.) Gentlemen of the jury, Negro David stands indicted for having stolen one piece of linen, the property of Thomas Stroud. To convict a person of larceny, the feloniously taking and carrying away the goods must be established, which may be as well done by circumstances as by proof. It is admitted the goods were stolen. The finding them in defendant’s outhouse is not sufficient of itself, but if you believe he knew they were there you must convict him; but if you think he did not, your verdict should be not guilty.
Verdict, guilty. Pillory was not inflicted, it not being laid as a second offense. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487468/ | Verdict, guilty. To pay $8, to be whipped with ten lashes on your bare back well laid on at the public whipping-post of this county, between the hours of 2 and 4 o’clock of this day, that you wear a Roman T, etc., that you pay the costs of this prosecution, and be committed to the public jail till the judgment of the Court be complied with on this November 18. 1 Del.Laws 296. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487376/ | Per Curiam. (Absente Johns, C. J., of Supreme Court.)
We are of opinion that the weight of authorities is for the admission of new proof, and recollect it was so settled last term.
The Chancellor further observed that this was not his own opinion.
Bayard, for the appellant, offered in evidence depositions taken under a rule of this court for depositions generally on four days notice. As proof of the notice, he also offered a deposition taken *264by the same justice fourteen days after the former, which proved notice to have been left at appellee’s house five days before taking the former depositions.
Wilson. The deposition which proves the notice is not evidence, for the rule does not extend to the taking the proof of notice, but the depositions of facts supposed to be material in the trial. This deposition was taken fourteen days after the rest, and was clearly without notice; yet appellee was entitled to his cross-examination of this witness. The proof of notice is always supposed to be evidence to the court (who must be satisfied of its sufficiency) as to the admissibility of depositions, and if it could be made before the commission, yet the nature of the case would require proof of other notices. Otherwise, a deposition must be read and believed in order to establish itself, which is begging the question, and at best a sophistical kind of proof. This is not the practice, and it cannot be established by authority, for notice is not given on examinations in England.
Per Curiam. Chancellor Killen.
The depositions are not allowed in evidence because of the defect of proof of notice. The depositions were taken the sixth of July, and the proof of notice was not made until fourteen days after the examination, though the notice, if proved, was good.
Appellee had proved possession by one Hinds. Appellant’s counsel offered an indictment (for a forcible entry by Hinds on N. Poore’s possession of this ground) returned billa vera, upon which process had been returned non est {inventus], and Hinds is proved dead.
Bayard. It is evidence to rebut the evidence as to Hinds’ possession and to show it was tortious.
Wilson objected that appellee was not party to it, and an indictment is not evidence in a civil suit. If Hinds’ possession was tortious, it should be proved by testimony. This indictment might have been the effect of appellant’s oath, and there is no conviction on it.
Per Curiam.
It may be read to rebut Hinds’ possession. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487377/ | The Supreme Court and Common Pleas, having the powers of the common law courts in England, and no other, in regard of costs claim no discretionary power but are directed by those statutes and our own Act of Assembly. And as the Act [2 Del. Laws] 1290, being made for the Commissioners, cannot extend to this Court, so the Statutes of Gloucester and Marlbridge did not extend to the same causes removed by writ of error. Costs were first given on writs of error, anna 1488. And by those statutes which govern the King’s Bench or Exchequer Chamber in cases of error, this Court are also governed and have no discretion in such cases, but must give or withhold as they are directed by law. This Court, upon an appeal from the Chancellor, by Art. VII, s. 2, of [the] Constitution [of] 1792, must pass such decree as he should have passed, and therefore the costs of that court are discretionary here. There is no statute or Act of Assembly making the costs of this Court discretionary, in the present case, unless Art. VI, s. 12, should have that effect, which perhaps extends no further than to give the party prevailing a remedy for them, which is inconsistent with an idea of discretion with regard to them. Nothing can be safely inferred from the Parliament’s giving costs upon an appeal from Chancery, for Parliamentum omnia potest, and could not be even bound by a law made by their predecessors.
*268What the practice of the Supreme Court was from the Orphans’ Court is not very certain, nor of much importance; but 1 Del.Laws 539, compared with [1 Del.Laws] 92, 126, 377, shows that costs were not discretionary in the Supreme Court, but appellant, failing, was bound by bond to pay them. With regard to the practice of the former Court of Appeals, no doubt that court had, by the Act of February 2, 1788 [2 Body Laws 840], powers sufficiently ample, as they were by that law, to exercise all the powers that the king and council before the Revolution could exercise upon an appeal to them, whose authority as it regarded this colony was perhaps not examinable. As this Court has no discretionary power as to their own costs, either by a continuation of the powers of the former Court of Appeals, or by Constitution, or by Acts of Assembly, costs here must remain as by the common law, that is, each to pay his own costs. The Act [1 Del.Laws] 1290, which this Court will see carried into execution cannot apply to this case, its operation being fixed to a month later than the decision in these caveats. And, at all events, the charge of attorney’s fees must be improper, as it does not appear that the Commissioners are constitutionally a court.
Curia advisare vult.
Per Curiam. Killen, Chancellor.
The Court have considered the question of costs in the case of Evans against Swain, and we are of opinion that the appellant is entitled to no costs of appeal, but must be allowed the costs below, and also of the trial in the Supreme Court, which was had by agreement, because of the written agreement.
Present: Booth, C. J., [of] Common Pleas, Clayton, Cooper, Rodney, and Bassett. Absent: Johns, C. J., whose opinion I also understood to be accordant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487378/ | After argument,
per Curiam.
We consider it as a clear point that the defendant is entitled to be discharged without payment of costs, as the acquittal has taken place since the operation of the Constitution. The language of the Constitution plainly applies to the present case. And it would be strange if one man must pay costs and another not, under similar circumstances, merely because of the time when the indictment was found. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487379/ | Bassett, C. J.
Two objections are made to the admission of this witness: first, that he has been convicted of an offense and sentenced to receive a punishment which renders him incompetent; second, that he is an accomplice. These objections go to the credibility and not to the competency. The record shows a conviction of having dealt with a negro slave. This offense is not infamous, though its punishment is so. The justice by whom the conviction was made could take cognizance only of the offense of dealing, etc., though he should state in the record that the goods were stolen by the slave, yet this would make no part of the conviction and therefore [would be] irrelevant. Many crimes not infamous are infamously punished, as fornication, etc. But it is not the punishment, but the crime, which constitutes the infamy which would render it dangerous to admit men as witnesses, and which therefore renders them incompetent. There is no ground for the second objection. Crimes are generally secretly committed and accomplices are often the only witnesses of them. It is the policy of the law to turn these people against each other and to make them the instruments of justice.
McDonough and Rodney, JJ., concurring, witness sworn. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487380/ | Bassett, C. J.
The Court have found themselves under some
embarrassment as to the question before them and could have wished for more time to consider the subject. It is the opinion of a majority of the Court that the witness is admissible, her credit to be left to the jury. At common law the witness would be competent; the objection arises from the Act of Assembly. The whole Act must be taken together. The first part of the 8th section says “that no slave manumitted agreeably to the laws of the State, or made free in consequence of this Act or the issue of any such slave shall give evidence against any white person etc.” The latter part of the section gives to them the same rights which belong to white freemen “to hold property and to obtain redress in law and equity for any injury to their person or property.” The latter part controls or qualifies the former. Negroes are allowed the" same redress for injuries to their persons as whites. Indictment is one mode of redress for an injury to the person, principally useful where the party injured is the only witness of the fact necessary to be proved. The Act giving to Negroes this right of redress must be construed to allow the means absolutely necessary to obtain the redress. We still allow sufficient operation to the first part of the section for we do not mean to say that a Negro is a witness between two whites, nor in cases like the present when other proof can be procured, but only in the case where justice must otherwise fail.
Rodney, J., concurring. McDonough, J., dissenting.
Per Curiam.
Witness admitted. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487383/ | [Per] Curiam.
Collins v. Hall has no application to this case; the State v. Bender was decided on the principle of necessity. The witness is not seeking redress and therefore not within the clause in the Act of Assembly relied on by the court in the State v. Bender. We consider him incompetent on the ground of the Act of Assembly. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487384/ | The Court held that notice should have been given of the nuisance or the defendant’s knowledge of it proved, without which she could not be convicted.
The jury accordingly gave a verdict for defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487469/ | Cause submitted to jury by counsel, and verdict not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487387/ | For Wright it was said that the title under which he claimed being prior in its origin to that of Scotten entitled him to a patent. The title on the other side commenced upon the location of the warrant in 1773, Wright’s title in 1759. That it appeared that the lands lay on the borders, and that it was within the knowledge of the Court that in such cases it was not customary in Maryland to grant patents. That such appeared to be the rule of the Land Office of that province from what was stated in a patent to James Harris dated 2nd October, 1782. That an Act of Assembly of Maryland of 1782, chapter 38, provided that all persons having surveys before 1st March, 1774, might compound before 1st November following on paying etc., and in default new warrants might issue, but, if no new warrants actually issued, they might compound at any time. The warrants and surveys from *404the Land Office of Maryland did not become void if no patent were sued but were liable to be avoided by warrants of resurveys. That those warrants and surveys were confirmed equally with those under Pennsylvania by the Act of Assembly establishing the Land Office [2 Del.Laws 1174].
Upon the other side, it was admitted that the title of Wright was good here if good under the laws and usages of Maryland. But it was insisted that by the proprietary proclamations and by the rules of the Land Office the warrants were conditional and required a patent to be sued out within two years from the survey; otherwise the warrants were void. That the Act of Assembly of Maryland proved that, if the Act had not been made, the warrants and surveys where no patent had issued would have been void. And this case is not assisted by the Act for its terms have not been complied with. The lands were admitted without a patent to be liable to a warrant of resurvey and in this case the survey in 1773 from the Proprietary of Pennsylvania might be considered as under a warrant of resurvey. The title of Wright was therefore either forfeited of course by the rules of the Maryland office or avoided by the survey under Scotten’s warrant.
On the 5th, Killen, Chancellor, delivered the unanimous opinion of the Court — that the patent to Wright be confirmed and the appeal of Scotten be dismissed with costs, and that the order for a patent to Scotten be reversed with costs. He observed that the Court considered the title to Wright as standing upon the same ground as if the warrant and survey had been granted by the Proprietary of Pennsylvania.
Read, Chief Justice of Supreme Court, said, that the cases were considered as turning upon a single point: Was the warrant and survey of Wright in force at the time the patent was applied for? The Court considered that nothing was done according to the rules of the Land Office to vacate the warrant. It was not void but voidable notwithstanding the terms of the Maryland warrants. Their usage was not to consider the warrants void if not complied with, but liable to be defeated by proclamation warrants. That the case was within the second section of the supplement [2 Del.Laws 1175] to the Act of Assembly [2 Del.Laws 1160] establishing the Land Office and Wright thereby entitled to patent.
Note. Read, C. J., said that it was expected by the Court that on appeals the appellant in his petition would concisely state his case and assign the causes of appeal. That such was the direction of the Constitution. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487389/ | Per Curiam.
This is an indictment for an assault and battery. The party on whom the assault and battery was committed is for the convenience of public justice admitted as a witness. It appears from what he says no third person was present upon the occasion of the assault and battery but the witness now offered, and we therefore conceive that justice requires that the witness should be admitted.
Witness admitted, | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487390/ | The Court (consisting of Johns and Rodney, Justices) were divided, upon which the witness was sworn.
Sarah, being sworn, stated that there were several white persons present at the transaction she was called to prove.
The objection was then renewed, and the Court agreed the witness was incompetent, upon which she was dismissed.
There being no other evidence against the defendants, they were acquitted by consent of Attorney General. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487392/ | Upon argument the Court held that the Attorney General was entitled to separate costs against each defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487407/ | Per Curiam.
(After argument.) This suit was well brought by the husband alone because the legacy accrued during the coverture. Com. Dig. title “Baron and Feme ” letter X. There is nothing in any of the errors assigned unless it be that the verdict and judgment are for damages alone when they should have been for debt and damages, and we will take time to consider whether the record may not be so amended as to answer the intention of the jury.
On the last day of the term, the Court said the verdict might be so amended and affirmed the judgment. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487417/ | Vandyke cited the case of Bail v. McCullough determined in New Castle at [-] Term [-] 2 to prove the very extensive jurisdiction exercised by that Court [of] Chancery. There being a suit between the parties at common law on a wheat bill, Bail deserted the court, and McCullough took a verdict in which the jury valued the wheat at $2.50 per bushel. Bail filed a bill in chancery for relief; at the hearing, the Chancellor said it was a proper case for relief in equity and reduced the valuation to $1.00 per bushel.
Blanks in manuscript, | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487394/ | Bassett, C. J., and Rodney, J., admitted the witnesses. Johns, J., dissented. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487395/ | The Court differed in opinion and so could not decide. Then Ridgely insisted the witness should be sworn, as there had been no decision against it. He cited Hooper’s Lessee v. Williams in Sussex, and the State v. Smith and Wootton in Kent, where the Court had decided that unless a witness was rejectéd by a majority of the Court, he was of course to be sworn.
Miller cited the case of [-] 1 lately determined in New Castle County, where a contrary decision was given, and also 1 Str. 68, Jones v. White.
The Court admitted the witness, alleging that the case in 1 Str. 68 regarded written evidence, between which and paroi evidence, they said, there was a great difference. Every witness *483is prima facie competent, and if an objection made to him do not succeed, he is of course to be sworn, 3 Bl.Comm. 369, Co.Litt. 6b, Esp.N.P. 703 (Evidence 1), 3 Term 29, 1 Term 164. Post Iff, same question raised, not decided. 1 Str. 343.
Witness admitted.
[Note.]
See Phill.Ev. 371, case of seven bishops for a libel. Question was whether this paper was admissible. Court divided, and so it was rejected; and so is Maenal.Ev.
The Act of 1787, from its language, seems to have contemplated only Negroes manumitted and their issue; yet before the Act [of] February 1, 1799, it seems to have been always held that no Negro (slave or not) could give evidence against a white person. This was doubtless a statutory construction, though Chief Justice McKean in 4 Dali. 145 n. (1) says it is a settled point at common law that a slave could not be a witness, because slavery is at least equal to duress, and because it generally induces a defect of religious principle.
Suppose a Negro born free offered as a witness, — in the last Case of Wooddell et al. she had been manumitted about twenty-one years before by Joseph Knock — the equities of the Act would render him competent, though neither “manumitted in pursuance of it” nor “the issue of” etc.
Semble, a slave is not a good witness against a slave, in principle, — certainly in all criminal cases, by 3 DeLLaws 81.
2 Del.Laws 887 does not prohibit free Negroes or “slaves manumitted” etc. to testify against any black person, only “shall not give evidence against any white person.”
3 DeLLaws 81 (1799):
(1.) Extends only to criminal prosecutions.2 3
(2.) And only to free Negroes.
*484(3.) And only where "it shall appear that no competent white was present, or now absent or dead,” etc. Question, How “appear”? Merely by non-appearance of white witnesses? Court must presume there was none; otherwise the State or party would have summoned him, or he would have confirmed the Negro’s testimony.
(4.) [Negro] is then as competent as a white under same circumstances.
(5.) Provided cannot charge a white as father of a bastard child.
See post 82, for cases where testimony has been admitted ex necessitate rel.
Blank in manuscript.
Footnote by Clayton, “Now suppose a civil case between two whites and witness is a free Negro. Then under Act 1787, if other whites were present he is not competent, case of Collins v. Hall, ante 3. But suppose no other white present? Ex necessitate rel. Question, the Act of 1787 excluded, when literally construed, all free Negroes as well in criminal as in civil cases — but the courts we see have construed it liberally and held that they are good witnesses, ex necessitate rel when beaten etc. — why not in civil [cases] too? Answer, they were held good witnesses in criminal cases because by the last clause of Section 8 they had a right to redress etc., State v. Bender, ante 3, 4. And they could not have redress unless witnesses; secus in civil cases.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487396/ | Per Curiam.
Let the decree of the Register be affirmed.
(They did not assign their reasons for affirming it.)
[Note]
The order of administration: the Act, 1 Del.Laws 284, 285, recites that “the Registers of the several counties, having power to grant administration to the widow or next of kin to the intestate and upon their refusal to the principal creditor or creditors of the intestate as he shall think meet,” etc.
By the civil law, as in England — ■
Widow or/and
And to one or both.
Reasons for this decision then probably were: 1. The agreement between the widow and Robert. 2. After the death of his father, Robert was next of kin and so equally entitled with the widow. And, lastly, it is impolitic to grant administration to a wife on second marriage, who then ceases to be the intestate’s widow and throws the administration on one who is too often so situated in regard to the intestate’s affairs as to have a fair opportunity of embezzling without incurring the danger of detection. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487397/ | The Court were of opinion that under the recognizance the sheriff’s sureties are merely answerable for what is done during *506the continuance of the term of office, and not for anything done afterwards, under the Act of Assembly [2 Del.Laws 933] permitting writs of venditioni exponas in certain cases to be directed to and executed by-later sheriffs; and accordingly reversed the judgment of the court below.
Ex relatione W. T. Clayton. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487398/ | October, 1814. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487399/ | This came before the Court on a writ of error to the Supreme Court. At the trial below exceptions were taken by the plaintiff to the opinion of the Court on several points of law. Verdict for the defendant. On the writ [of] error last August Term the judgment of the Supreme Court was reversed, and judgment rendered that plaintiff recover his term. Ordered that the quad recuperet be vacated, and that the cause be remanded to the Supreme Court for final decision. Del.Const, Art. 7, s. 2.
JAmes Rogers, Esquire, was appointed Attorney General in the Winter Vacation of 1814. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487400/ | May, 1815. This account of this case is repeated infra, Clayton’s Notebook, 176, | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487401/ | Per Curiam.
Any attempt with force and arms to do an injury to another, where the attempt is coupled with an ability to do the injury, is an assault.
As to the notice given to Fleetwood by Coxe’s wife not to enter the house: where the husband is present, the wife has no right to forbid any one to enter the house.
It is very certain that an officer cannot justify breaking open an outer door to execute any civil process, nor can the landlord to distrain; but where an actual levy or distress has been peaceably made, we hold it equally clear that an outer door may be broken open in order to get at the goods for the purpose of selling them. An entry to sell resembles the cáse of breaking open an outer door to retake one who has escaped after an arrest on a copias ad respondendum, which may unquestionably be done, even on Sunday. (See a case in 1 Esp.N.P. 382, Francomb v. Pinche.)
Verdict, guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487402/ | *534Defendant offered to prove a paroi license from Peacock, the patentee, to do so.
But, per Curiam: The Act of Congress is express. Defendant cannot avail himself of a paroi license. The authority must be in writing.
Duval, J., thought, however, this paroi license might be proved to go in mitigation of damages.
Fisher, J., was for rejecting it in toto.
A question then arose, the Court being divided, whether the evidence should be admitted or rejected.
Rodney contended that the evidence could not be admitted. He said it had been repeatedly decided in the state courts that, where the court was divided on an exception to evidence, it was of course rejected, and vide Jones v. White, 1 Str. 60, Thornby v. Fleetwood, 1 Str. 383.
Clayton maintained that the rule in the state courts was to admit the evidence, vide State v. Wooddell et al. (ante 6), a diversity between paroi and written evidence; and the authorities there cited.
Duvall, J.
The practice of the state courts must govern. We will give one half hour to search for precedents. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487403/ | *535The Superior sailed from England for Philadelphia before hearing of the declaration of war [and] arrived in Delaware Bay. McLane, the Collector of Customs for the port of Wilmington, heard of it on August 24, 1812. On [the] 25th, [the] Superior was boarded by one of the gunboats belonging to plaintiff Murray, and a prize master put on board who, however, neglected to get possession of her papers. A few hours after, she was boarded by one of defendant’s officers who got the papers from the master. Murray and McLane disputed about the possession of her — latter compelled to leave her in Murray’s hands. The District Attorney, Mr. Read, advised McLane to replevy her, but before he could she was out of the district. Bayard, Rodney and Read, counsel, advised that Murray was liable to McLane for her forthcoming. McLane therefore commenced action against Murray of trover, and a copias issued against Murray, having an indorsement directing the marshal to take bail in $1,200,000, on which Murray was imprisoned. Ten or eleven days after, Murray obtained a rule on McLane to show cause before Justice Fisher why he should not be discharged on filing common bail, and no cause being shown, the rule was made absolute. At the next term, a rule nisi for striking the cause off the docket was made absolute without opposition. The Superior was discharged from them both, [by an] Act [of] Congress, January 2, 1813.
Per Curiam.
Plaintiff must prove that the original action was instituted maliciously and without reasonable or probable cause. Malice is either express or implied. Malice may be implied from want of probable cause, not want of probable cause from malice.
1. Malice is matter of fact for the jury.
2. But the question of probable cause is a mixed question of law and fact. Whether the facts to show it probable are true is matter of fact, but whether, supposing them true, they *536amount to probable cause, is a question of law to be decided by the Court.
3. Whether the bail was excessive depended on the law and practice of Delaware. In Maryland, no man can be held to bail in an action for the small sum of $50 without an affidavit. But in Delaware, I understand the rule as proved to be different, and that a man may be required without affidavit to give bail in the first instance to any amount according to the value of the thing in contest. He may be afterwards exonerated, on application to a judge or justice for a rule on the plaintiff to show cause why he shall not be discharged on filing common bail; and it also appears that the practice is to require bail in double the amount of the value of the demand. In this case the $1,200,000 were not more than double the value of the Superior and her cargo.
Now with regard to the question of probable cause: before the war the Collector had the exclusive right of boarding. Now Murray has a right to board a vessel to inquire whether she be prize of war. Was this vessel such? Murray had a right to inquire certainly, but the Court think that after the commander of the revenue cutter had boarded and taken the papers, he was, in construction, of law, in possession of the vessel, and that she ought to have been delivered up by the officer of the flotilla, whose carrying her out of the district was, as I conceive, wrongful.
Plaintiff contended that as the vessel was trading with and from an enemy the seizure by Murray or his officers was as prize of war, and cited Doug. 615, 617,1 Rob.Adm. 165,1 Term 84 and 549. But the Superior was not captured on the high seas trading with the enemy. Seizures of vessels within the waters of. United States for violation of the Non-Intercourse Act are considered as properly belonging to the revenue officers, as may be inferred, from the instructions of the executive to Murray afterwards, to have been the opinion of government and the many departments.
Now after seizure by the Collector, the vessel and cargo are at his risk. Hence [the] Court think there was probable cause, if these are the facts; especially as the eminent counsel, the District Attorney, advised the suit.
The jury returned in about ten minutes with .verdict for defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487405/ | Johns, C. J.
The question of law in this case is so plain that there can be no rational doubt respecting it. We are decidedly of opinion that this condition is void. The decisions of the High Court of Errors and Appeals are certainly binding on us, but when this case was argued Chancellor Ridgely, Chief Justice Booth, and Justices Way and Warner were the only members of the Court; there was a bare majority, and Chief Justice Booth, and Justice Warner, have since changed their opinions and think the condition void.
Verdict for defendants again. Bill of exceptions again.
In High Court of Errors and Appeals, June Term, 1818. The case of Dehorty’s Lessee v. Jones et al. came on upon a writ of error from Supreme Court.
Copy of so much of the will of John Dehorty as came in question:
“I give and bequeath unto my son John Dehorty, after the death of my wife or her marriage, all the remainder of my lands to him and his heirs forever; but in case my son should involve himself in debt at any time to the amount of £30 current money or should offer any part of said land for sale, then I give my land unto my two daughters, Mary Dehorty and Peggy Travers, to be equally divided between them, to them and their heirs.”
*556John Dehorty, in his lifetime, executed a bond for a sum above £30. It was not, however, shown that he owed at any time a sum greater than he was able to pay out of his personal estate; indeed the contrary appeared to be the fast, for at the time of his death, shortly after the execution of the bond, his personal estate amounted to $1,579.97, and his debts (funeral expenses and all) were only $1,018.22, leaving a clear balance of $561.75, as appeared from the administration account on his estate. ’
The lessor of the plaintiff claimed under M. Dehorty and P. Travers, and defendants under John Dehorty, the son. The cause was now argued by Hall for the lessor of plaintiff and Clayton for the defendant. The two questions moved were whether the condition was valid and whether there was any breach of it.
Hall. The second branch of the condition restraining the right of alienation, we admit, is repugnant. But the first is valid. It is a first principle of the law that he who has a right to property has the right to dispose of it — whether by grant or devise, as he may deem proper — particularly in cases of devises, which are purely gratuitous. Now is this case an exception to the general rule? As we can find no condition in the books like the present, we must argue from analogy. In Thellusson v. Woodford, 4 Ves.Jr. 318, there is a very strong instance of a successful attempt at fettering an estate. ([Note.] This must be the case of the “trust of accumulation,” 4 Cru.Dig. No, but see that too.) The testator, who was immensely wealthy, by his will so limited his estate that his heirs were not to receive any part of the profits until after the death of all his children and grandchildren in issue and in ventre sa mere at the time of the testator’s decease, until which time the estate was to accumulate in the hands of trustees. It was calculated that the estate would by that time accumulate to seventy millions, yet it was held good.
An estate to a man and his heirs, tenants of Dale, is valid condition. 2 Bl.Comm. 154. So, “as long as he continues unmarried” is a good condition, 2 Bl.Comm. 155. (Query [by Clayton].) So, “that devisee take the name, use the coat of arms, and reside in the manor house of the devisor,” 2 Wood.Lect. 141, 142. So, that devisee shall not marry a Scotsman or anyone of Scotch parentage. Perrin v. Lyon, 9 East 170. So, to A in fee, but if he dies without lawful issue living at his death, he shall not have power to devise except to his sisters, 6 East 172. Generally the grant of an estate implies the right to dispose of it; but, short of a perpetuity, the parties may restrain the exercise of that right according to their pleasure, 8 Term 61.
*557Conditions may affect the power of the grantee or devisee over the thing granted or devised, [or] the power of the grantee or devisee over collateral matters. And it is a sound distinction that the same condition is often void in the former case and valid in the latter. Thus, if A enfeoffs B of Whiteacre upon condition that he shall not alien it, the condition is clearly void. Yet if B be seised of Whiteacre, and A enfeoffs him of Blackacre upon condition that he shall not alien Whiteacre, the condition is good, because it regards collateral matter. Co.Litt. 223a. And so all other conditions, which, if annexed to the land granted or devised are void merely on account of their repugnancy to the estate passed, are good if the act to be done or not done, and upon which the estate granted or devised is limited over, is to operate upon other lands or other things, ibid. All repugnant conditions to be found in the books are conditions which limit the power of the devisee or grantee over the estate granted or devised: as, that grantee shall not take the profits, Co.Litt. 206b; that tenant in fee shall not alien, Co.Litt. 206a, 223b; and other like conditions, ibid. and Bac.Abr. 410, ComuDig. title “Condition” D 4, 5. (Query.)
In the principal case, the condition is that the devisee shall not involve himself in debt at any one time [to] £30, which is a collateral right; and therefore the condition is not repugnant to the nature of the estate devised. Nor is this condition an impossible one. An- impossible subsequent condition is void, and the estate is absolute. But an improbable condition is good, and the estate void: as, that a married man shall marry such a woman, which is improbable, but not impossible, for perchance his wife may die before himself, 1 Roll.Abr. 419, line 45; that the Pope shall be in London within a day, 1 RolLAbr. 420, line 2; that it shall rain tomorrow, which may happen, though it be out of human power to cause it; and so of other conditions, Com.Dig. title “Condition” D 1, 2, Co.Litt. 206a, n. 1. And there was no absolute and uncontrollable necessity that John Dehorty, the son, should have become involved in debt at any one time [to] £30. Nor is the condition illegal. All conditions against law are reducible to one of these three heads: (1) either to do malum in se or malum prohibitum; (2) to omit a duty; (3) to encourage such crimes and omissions. 1 P.Wms. 189, Co.Litt. 206b, n. 1, 2 Bl.Comm. 157, Com.Dig. title “Condition” D 3. Does the not becoming involved in debt fall under any of these?
It was objected at the trial below that it was against the policy of the law that a man’s land should not be subject to the payment of his debts. But this is only while the tenant himself remains in the perception of the profits. But we contend that *558this is no longer the property of John Dehorty, the former tenant, after the breach of the condition. You cannot give a man an estate for the benefit of his creditors, nor the charge [in] the nature of one. Estates tail are valid, yet cannot be sold for debts. You cannot charge it. If it be urged that the devisee would have no interest in keeping the condition after his lands should be sold, the answer is that the same objection applies to grants on condition of taking a particular name, using a coat of arms, living in a particular house, or not marrying a Scotsman, which are good conditions. 1 Fearne Rem. 384 relates to direct conditions and does not apply here.
Ambler 379, 380 was cited below and much relied on by the Court. The point there decided was that a condition that tenant in tail should not suffer a recovery was void. Now a recovery is inseparable from an estate tail, and as the condition acted on the thing granted it was void. It is not one of the incidents of an estate in fee that the tenant be at liberty to contract debts. It is merely inconvenient.
A personal annuity was devised to one on condition that he should not become a bankrupt, and the condition was held good, 6' Term 684 — a fortiori in case of real estate. The act of bankruptcy too implies a deficiency for the creditors, and the determination of the annuity there diminishes the dividend for the creditors. That case is stronger than this other.
Second point. With regard to the word “involve” there cannot be the least doubt. The expression “at any one time” shows it clearly relates to the simple act of incurring a debt of £30 without reference to devisee’s ability to pay it, independent of the land..
Chancellor Ridgely adverted to the case Hunter v. GaTliers,. 2 Term 133, where a proviso in a lease for twenty-one years that the landlord should re-enter on the tenant’s committing any act [of] bankruptcy was held good.
Clayton. This is not the case of an annuity or a term for years, both of which are subject to different rules. A termor for life or years may be restrained from aliening, which a tenant in fee cannot be. Co.Litt. 223b, n. 1. The owner of land is not at liberty to dispose of it as he sees fit, but subject to the rules of the law.
This is a case of the first impression. No cases in point are tO' be found in the English books, and if they could be found and should support the condition, yet they would not apply to this: country, for lands are here in a very different situation from what. *559they are in England. It is the policy and object of the laws, and in fact, one of the incidents of land in this country, that it shall be liable for the debts of the tenant or owner, and it is the duty of the courts to resist any attempt to prevent that liability from attaching. This is a direct attempt of that kind, for the amount of the restriction is entirely immaterial — if it be good for £30, it would be good for one cent, and the laws would become a dead letter.
Inconveniences would encompass the tenant himself. He could not hire laborers for the cultivation of his land, nor stock his farm, nor improve it, without endangering his title. Everything the most trifling, everything wanted, whatever-be the urgency of the case, must be paid for in advance. If the tenant is attacked by a sudden disease, the messenger for medical aid must bear the precise fee in his hand. Is not such a condition impossible? No act or precaution can preserve a man through the whole course of his life entirely exempt from debts.
This condition is, in this state, a restraint upon alienation, for in this state one mode of alienation is by sheriff’s sale, which the condition, if good, would effectually prevent. If this condition be good as to the devisee, it would be good as to the heirs ad infinitum of a devisee, and thus introduce perpetuities, which the law abhors. It is similar to the condition that the tenant shall not receive the profits, which is clearly void. Co.Litt 206 b. So, a bond by tenant in fee not to commit waste is void, though the bond be a distinct act from the deed of grant and so collateral to the grant. (Query.) So of a grant upon the collateral condition not to marry. Hence there is no distinction between collateral and direct conditions. Amb. 379, case of the condition not to suffer a common recovery, was collateral also. In Davidson v. Foley, 2 Bro.C.C. 203, an attempt had been made so to frame an annuity as to exclude all of the annuitant’s creditors except such as were mentioned in a schedule, and the Court decreed in favor of the creditors attempted to be excluded. It is a sufficient objection to this condition that it is an innovation upon the principles of common law, Co.Litt. 379b.
But if the condition were good, yet there has been no breach, for the word “involve” necessarily implies an inability to pay, which never existed on the part of John Dehorty, the devisee. He left a clear personal estate of $561.75 after the payment of ah debts and funeral expenses.
Hall in reply. Co.Litt. 379b means that new inventions to get rid of the principles of the common law ought to be discounte*560nanced; but to reject a novelty which contravenes no rule of law would be to bar the doors of justice against more than half the cases that occur, which all involve some new circumstances.
A great principle is that tenant in fee may dispose of it as he pleases. 2 Bro.C.C. 203 was to protect annuitants against their creditors, but here the creditors have no remedy against the land because the devisee has none. It does not remain in his hands to their injury.
The case in Ambler was clearly a direct condition. There is a great difference between the liability of lands for debts and the power to incur debts. I doubt whether a condition against marriage annexed to land be generally void. It is true that legacies on such a condition are absolute. (Query, not always.) But that proceeds upon the rule of the Civil Law introduced by Augustus on finding, by a census of his subjects, a great proportion unmarried.
General restraints upon trade are decided to be void because it is the duty of everyone having a trade to exercise it for general benefit, and because it is the interest of the state that competition should exist. Is it the duty of a man to run in debt? Is it the interest of the state? And particular restrictions of a trade are not void. This is but a particular restriction against debts under £30.
This can never be a perpetuity, as John Dehorty’s heirs would after his death have had an absolute estate had he not broken the condition. It would be more convenient for tenant in tail, for life, and years to have a fee, that however would bé no argument in a court of justice for extending their interests to a fee.
Chancellor Ridgely.
(Present: Booth, C. J. C. P.,2 and Justices Warner,' Cooper and Paynter.) This cause has been extremely well argued. Everything has been said that could throw any light upon the subject, and we are unanimously of opinion as we were when this cause was in this Court before, that the condition is good and that there has been a breach of it. It is however due to the Supreme Court to state that two of the members of this Court have subsequently to the first reversal of the judgment of that Court entertained some doubts on the question. Those doubts have been removed by this argument.
It is true the estate if sold would have been fettered — but that takes place on the alienation of all estates in condition or base fee.
Hall and Ridgely for plaintiff. Clayton and BrincJcle for defendants.
It is no perpetuity. We think the word “involve” means here incurring debts to the amount of £30 without reference to the devisee’s ability to pay independent of the land.
That part of the condition prohibiting the alienation of the land is void.
We think the whole case clear beyond any controversy. We have tested it by every legal principle that can have any bearing.
Judgment below reversed and cause remanded for new trial.
Same case. Supreme Court. Kent. October Term, 1818.
The cause was again argued nearly as before.
Present: Chief Justice Johns, [Justices] Davis and Paynter.
Johns, C. J.
We have no doubt about this question, but the High Court of Errors and Appeals have decided against our opinion.
And in conformity with that, he told the jury they must (as they then accordingly did) find for plaintiff.
Manuscript reads “C: J. C. C." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487406/ | *564The record of the granting of letters of administration de bonis non might have been relevant, for it would have laid the foundation for us to show that we were discharged by a payment to the administrator de bonis non of all monies which had come to the hands of our principal.
As to the third objection, it was not incumbent on the defendant to give notice of it on the record; he could not plead it. It was the duty of the plaintiff to show her interest.
Per Curiam.
(Present: Ridgely, Chancellor, Booth, C. J., and Warner, Paynter and Cooper, JJ.)
This case is to be governed by the Statute, 8 & 9 Will. [& Mary,] c. 11, s. 8. It certainly has been considered in force in this state in other cases, and we see no reason why it should not be extended to administration and testamentary bonds. As the intention of our Act was that judgments recovered under it should be for the benefit of all interested, it had to go beyond the Statute and direct that the judgment in the first instance should be for the penalty, upon which judgment a scire facias issues to ascertain the amount actually due the person for whose use the suit was brought. Under the Statute, no person could proceed upon the judgment but the party; under our Act, any person may proceed on the judgment.
The defendant in this case pleaded performance, and the plaintiff joined issue upon the plea, which is error. He ought to have assigned a special breach in his replication.
The last objection is also a fatal one. The interest of the person for whose use the suit is brought ought to appear upon the record. We are of opinion that it should be set forth in the declaration. The bond is for the use of persons interested; none other have any right to proceed upon it.
The Court gave no judicial opinion on the second objection, but the Chancellor said it was his opinion that a legatee, heir or creditor might maintain a suit against the executor or administrator, and that that was the proper course. The practice has been in a considerable degree that the representatives of an executor or administrator should pay over to administrator de bonis non, and that suit would lie against administrator de bonis non, where assets have come to the hands of the original executor or administrator; but I have always considered such practice as illegal.
*565Booth, C. J.,
stated the same thing and added that those cases which had come before the Court passed sub silentio — the question had never been made.
Judgment reversed.
Note. The judgment of the Court upon the first point is certainly correct, yet it appears to be very clear that these suits are not within the Statute, 8 & 9 Will. & Mary. They are regulated by our own Acts of Assembly and common law. In regard to the assignment of a breach of a condition to a bond, it was always necessary at common law that there should be an assignment, and further that there should be but one breach shown, for one single breach was sufficient to forfeit the bonds. So it would appear that in suits on public bonds no more than one breach can be assigned. 1 Esp.N.P. 207. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487408/ | The brother of the lessor of the plaintiff was born in Ireland and came to this country prior to the Declaration of Independence in 1776. He remained in the United States until after the treaty of 1784, when he died intestate and without leaving any descendants. He was at the time of his death seised in fee of the lands in question, which, being considered at the time as having escheated to the State, were by a special Act of Assembly granted to Joseph Haslett and Jemima Monroe, who were the brother and sister of McDermot’s wife. The lessor of the plaintiff was born prior to the Revolution, but has always continued to reside in Ireland his native country.1
The report of this case is incomplete, but the holding is summarized by Clayton’s headnote. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487409/ | Per Curiam.
After much deliberation we are of opinion that in this case the grand juror is not a witness, though as to the case of perjury we think differently.
After another argument it was decided that a juror might swear to these facts, however, vis.: that Lewis charged Mr. Wallace before the juror with this crime out of' the juryroom and before he was examined; that Lewis, was sworn before the grand jury; that the usual memorandum containing the names of Lewis *610and Riley as witnesses on the indictment against Wallace was sent up to the jury, the loss of that memorandum having been first proved by Harper, the clerk, on oath.
Thomas Clayton moved to strike out Bell’s testimony, a grand juror who had given in all his evidence before the exception was taken. The counsel for the State opposed, and the Court decided that the objection came too late. (Sed vide 2 Esp.N.P. 346, N.Y. ed.,2 and the numerous cases there cited.3 Contra for the State, 4 Burr. 2252, [2] Esp.N.P. 408.)
The jury were out about seven hours, and verdict not guilty.
This reference and the next following reference to Esp. N. P. are to the first "Gould edition,” 2 vols., New York, 1811.
Footnote by Clayton, “For the prisoner’s objection, 1 Macnal. Ev. 146; yet such objections in criminal cases are always allowed, and so I think the Court was wrong.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487410/ | *615Decided in New Castle, Chancellor Ridgely, (Orphans’ Court) April, 1819, that the indorsers on an accommodation note might all be compelled to contribute alike. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487412/ | Matilda Brown died about August 8th. Mary Reasons, a free Negro, came to labor in the house of deceased on [the] 11th, to clean up after her death and then, viz August 11, took the goods in question. Letters testamentary were granted to Ezekiel Hunn on the 19th. By the indictment the property was laid in Ezekiel Hunn, without mentioning his representative character; and now this point was made before the jury and discussed: whether he should not have been mentioned as executor. Here Ezekiel Hunn had never received actual possession; his was only a constructive possession. In such case executor could not maintain trover without mentioning his representative character. 4 Term, Coclcerill v. Kynaston, etc.
Court decided that property was well laid. 3 East 110,10 East 294 (case of an administrator, [Hollis et al.J v. Smith), etc. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487413/ | Chief Justice Booth said the Court decided this against us now.
Verdict guilty, on slight evidence.
The counsel filed motion in arrest of judgment, because the indictment had not concluded “against the peace and dignity of the State.” (State Constitution, Hawk and Bacon, 2 Hale P.C. 188, 1 Chit.Cr.L. 247.)
Per Curiam.
Let the former recognizance be respected.
Note. The point on which judgment was arrested was made before the jury, but the Court said it was improper there, for, if successful, defendant could not be indicted again. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487415/ | J. M. Clayton. The lapse of time is nothing if short of twenty years. And the case of Kennedy v. Nedrow and Wife et al., 1 Dali. 417, 418, is in point to show that even if she had acted as executrix or claimed under the will (made before 1816) any interest whatever, and even if she had been a party to a partition, she is not barred of her dower. Every will at common law and before 1816 imported a bounty.
Hall urged the lapse of time and then partition.
The Chancellor, on the case, 1 Dali., decreed for the petitioner. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487416/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487470/ | Verdict, guilty, and sentence thirteen lashes, etc. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487471/ | Keturah Combs. Susannah Hilton beat and abused me and beat me, etc.
Robert Maxwel. I heard K. Combs crying murder, went over, saw her and Susannah H. was going away. Said she had beat her and would again.
Fined $2. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487418/ | Chancellor Ridgely.
(Present Johns, C. J., Cooper, Davis and Paynter, JJ.) It is the unanimous opinion of the Court with one exception that the adjudication of Common Pleas be reversed.
By 1 Del.Laws 435, c. 188, passed 1767 no negro slave shall be deemed free until his master shall have given security to the county in a recognizance in the sum of £60, to indemnify the county against any charge which may arise from the Negro’s inability to support himself. After this enactment, the case of Negro Rose v. McGarmont arose in the Court of Common Pleas. Rose, the Negro, had been declared free by McGarmont, but the security required had never been given. The Court of Common Pleas nevertheless adjudged her free, and that decision on appeal to the Supreme Court was affirmed, against the opinion of Chief Justice Killen. In the argument of that cause the case of bishop’s leases in England was much relied on, which, although declared by the Statute void unless made in a particular manner, are yet supported by the courts against grantor himself, and the remedy extended merely to the successor. (Semble, case of Registry Act also, vide Notes, End of Covenant.) We conceive the case of bishop’s leases not analogous. The remedy, it is true, was intended for the country, but there is no middle course between slavery and freedom, if in a case where no security has been given, the Negro be declared free, the master ceases to be answerable for the maintenance of the Negro, the master’s liability arising only out of the recognizance.
This very case of Negro Rose v. McGarmont gave rise to the explanatory Act, 2 Del.Laws 885, c. 145b, in the third section of which that decision is alluded to and disapproved of. This latter Act excepts in favor of slaves above eighteen and not exceeding thirty-five years who are “healthy and no ways decrepit.”
The defendant George in this case has failed to produce a manumission in writing under the hand and seal of his master and subscribed by one or more credible witnesses as prescribed by the Act 2 Del.Laws 1321, c. 124c, which declares every manumission made in any other manner utterly void.
George therefore is the slave of Wilson. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487420/ | Chancellor Ridgely.
(Present: Booth, C. J., Paynter and Cooper, JJ.) All the Court except myself think the Supreme Court should have admitted the proof of handwriting of the maker and the witness after residence of that witness out of the state was proved. And I concur with my brothers that the plea of non est factum was a nullity, and, as the other pleas admit and avoid the note, there was no need of proving it. It should have gone to the jury without requiring any such proof. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487421/ | Per Curiam.
We are unanimously of opinion that under the Act of Assembly, if the letters of administration are filed and security given at any time before judgment, it is sufficient. This we know has been the construction put upon the Act for more than thirty years past. The object of the Act is to prevent foreign ad*640ministrators from applying assumpsits in this state to the payment of debts out of it, until all those due to inhabitants are fully satisfied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487422/ | *641The Chancellor dismissed the bill on the merits.
The cause of appeal assigned was mistake at first as to amount of assets, payment under that; the decree against law, equity and good conscience. J. Rogers and G. Read.
Per Curiam.
Let the decree of the Chancellor stand affirmed.
(Vide, contra, Atkins v. Hill, Cowp. 287. If after legacy paid, debts appear, the money may be recovered back, on the ground of a payment by mistake.) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487424/ | *642Rodney, arguendo, cited the case of Rodney v. Cummins, tempore Chief Justice Read, in which the defendant pleaded the Act of Limitations. Cummins on the day of the trial made some admissions respecting the debt to one Smith, who being produced to prove them, the evidence was objected to on the ground that they were made after plea pleaded.
Bed per Chief Justice.
That can make no manner of difference. The evidence is clearly admissible. Vide, Yea v. Fouraker, 2 Burr. 1099, 1 Dali. 65. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487425/ | Per Curiam.
In alleging diminution, the particulars wherein the record sent up is defective must be specially set forth.
Memorandum. I was admitted October Term, 1818, aetat. 22, 3 months. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487426/ | October, 1793. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487440/ | The Court do not consider him as an incompetent witness: first, from the necessity of the case; second, his interest being remote or very small.
Maxwell. On Monday morning after this happened, Beau-champ rode up and said the evening before he took his negro man to see Abram. He was going to leave him, and Abram called after him. They disputed and Abram called him a liar. He then said that he struck him, Abram, with his whip and got off his horse and dragged him towards some brush etc.
William Berry, Esq. On Sunday evening Beauchamp complained on oath that he was afraid Abram would bum his house or do .him some other injury. I issued a warrant or warrants against [Abram].
Verdict: guilty of an assault only, not guilty of the battery. Fined £5. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487472/ | Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487473/ | Verdict, not guilty, jury being up about fifteen minutes. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494103/ | MEMORANDUM OF DECISION
JIM D. PAPPAS, Bankruptcy Judge.
Introduction
Plaintiff, R. Sam Hopkins, chapter 7 trustee, commenced this adversary proceeding against Defendant Donald W. Lojek, alleging that he received an avoidable post-bankruptcy transfer of property of the bankruptcy estate under § 549(a).1 Defendant denies the transfer should be avoided, but if it is, in a third-party complaint, Defendant seeks to recover a judgment against the chapter 7 debtor, Ralph John Scheu and another party, Zhao Hui, in a like amount.2
*753At the conclusion of the trial, conducted on October 13, 2006, the Court took the issues under advisement. The Court has considered the evidence, testimony and arguments presented by the parties, as well as the applicable law. This Memorandum constitutes the Court’s findings of fact, conclusions of law and decision. Fed. R. Bankr.P. 7052; 9014.
Findings of Fact
Defendant, an attorney, and his law firm, Lojek Law Offices, Chartered (“Lojek, Chtd.”), represented Scheu in a personal injury suit against another party in state court. Scheu was awarded a default judgment for $561,197.42, although he has been unable to collect it.
When Scheu failed to pay for the legal services, Lojek, Chtd. sued Scheu in state court. Prior to trial in that action, the parties settled. As agreed by the parties, on June 22, 2004, Scheu executed a promissory note which required him to pay Defendant $3,000 with interest. Ex. 1.3 Scheu also signed a security agreement in which he granted Lojek, Chtd. a security interest in his 1981 Jeep to secure payment of the note. Ex. J.4 Scheu also gave Defendant the certificate of title to the Jeep. On July 27, 2004, a judgment in the amount of $3,000 was entered against Scheu in favor of Lojek, Chtd. However, the judgment provided that if Scheu made the promised payments, Lojek, Chtd. could not execute on the judgment. Ex. E.
On November 23, 2004, Scheu sold the Jeep to Zhao Hui. Ex. DD. Scheu testified that he used a portion of the sale proceeds to buy food and pay living expenses. However, he also used some of the sale proceeds to purchase two cashier’s checks.
The first check, dated November 23, 2004, was made payable to “DONALD W. LOJEK” in the amount of $3,075. Ex. 2. Scheu testified he went to the bank during the morning hours, obtained the cashier’s check, and immediately went to the post office, where he mailed the check to the Lojek, Chtd. post office box listed on Defendant’s correspondence. He sent the check to Defendant via overnight mail in a specially-designated envelope he obtained from the post office, for which he had to pay substantially more than the ordinary first-class letter rate.5 Scheu testified that he intended this check to constitute payment in full of his debt for legal services, and he expected to receive a release of the lien on the Jeep so he then could convey clear title to the purchaser, Hui.
The evidence does not conclusively establish the date and time the check reached the law firm’s post office box. Scheu supposed it would have arrived the morning following the date it was mailed, but of course, this is speculation. Because Defendant had been on vacation, and given the intervening Thanksgiving holiday, it is also unclear exactly when the check was retrieved from the post office box. However, Defendant testified that November 29, 2004 was the first day he personally had possession of the check. It is undisputed that on that date, Defendant endorsed the check over to Lojek, Chtd., and deposited it in the firm’s bank account. He also remitted a small amount to Scheu *754by return mail, because he felt Scheu had erred in calculating the interest due on the debt.
Scheu also used some of the Jeep sale proceeds to pay his bankruptcy filing fees. He testified that later the same day he mailed the check to Defendant, he returned to the bank and obtained a second cashier’s check, also dated November 23, 2004, for $209, payable to the “US BANKRUPTCY COURT OF ID.” Ex. BB.6 He testified that he took the check to the office of his attorney, Mr. Kraynick, and then finalized his bankruptcy petition. Late on the afternoon of that same day, November 23, 2004, Scheu mailed his completed bankruptcy petition and the check for the filing fees, also via overnight mail, to the clerk of this Court. See, Scheu’s Deposition Transcript, Ex. 6, at 27; 34. It is undisputed that Scheu’s petition and check were received by the clerk at some time the following day, November 24, 2004.7
The Pleadings
Plaintiff was appointed to serve as trustee in Scheu’s chapter 7 bankruptcy case. On November 7, 2005, Plaintiff filed an adversary complaint against Defendant seeking to recover the $3,100 payment made by Scheu to Defendant.8 Docket No. 1. In response, Defendant denied the transfer could be avoided and recovered. Defendant also filed a third-party complaint against Scheu and Hui, the purchaser of the vehicle, asserting that if the transfer was avoided, then Scheu and Hui should reimburse Defendant for any amounts he must pay to Plaintiff, together with his attorney fees and expenses. Docket Nos. 5, 6.
Conclusions of Law and Disposition of Issues
I.
Plaintiff contends that when Defendant negotiated the $3,075 check, Scheu’s bankruptcy case had already been filed, and therefore the payment constituted a post-petition transfer which Plaintiff, as trustee, may avoid and recover from Defendant under §§ 549(a) and 550(a).9
Section 549(a) provides that a trustee may avoid a transfer of property of a bankruptcy estate that occurs (1) after the commencement of the bankruptcy case, and (2) that is not authorized either under the Code or by the Court. In re Mora, 199 F.3d 1024, 1026 (9th Cir.1999) (holding that Trustee “must show that a transfer occurred after the filing of the bankruptcy petition and that the transfer was not authorized by either the bankruptcy court or the Code.”); Fitzgerald v. Beesley (In re Beesley), 92 I.B.C.R. 82, 82 (Bankr.D.Idaho 1992). Defendant has not argued, nor *755was any evidence offered to show, that the payment of the $3,075 by Seheu was approved by the Court or otherwise authorized by any provision of the Bankruptcy Code. Therefore, the second prong of the statute is not at issue. Instead, the outcome of this contest turns on whether the subject transfer occurred before the filing of Scheu’s bankruptcy petition.
The Code “grants a trustee an impressive array of powers to avoid transfers of a debtor’s property.” Fitzgerald v. Bauer Pontiac-Cadillac-Buick-GMC, Inc. (In re Nedrow), 95 I.B.C.R. 198, 199 (Bankr.D.Idaho 1995). In the Code, the term “transfer” is defined as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property ... [.]” § 101(54). The payment from Seheu to Defendant therefore constitutes a transfer for avoidance purposes.
Plaintiffs evidence demonstrates that the cashier’s check was cashed by Lojek, Chtd. on November 29, 2004, five days after the filing of Scheu’s bankruptcy petition. Because Plaintiff has presented a prima facie case that the transfer can be avoided under § 549(a), Defendant bears the burden of proving that the transfer was valid. Rule 6001 (“Any entity asserting the validity of a transfer under § 549 of the Code shall have the burden of proof.”). See also, In re Mora, 199 F.3d at 1026; In re HMH Motor Services, Inc., 259 B.R. 440, 448 (Bankr.S.D.Ga.2000); In re American Way Service Corp., 229 B.R. 496, 525-26 (Bankr.S.D.Fla.1999).
The Ninth Circuit Court of Appeals, in In re Mora, supra, decided a related question: “[D]oes a transfer of an interest in a cashier’s check occur at the time the check is mailed, for purposes of avoiding postpetition transfers under section 549(a) of the United States Bankruptcy Code?” Id. at 1025. The Mora court’s answer to the question was “no,” holding that “placement in the United States mail system does not constitute ‘delivery’ of a cashier’s check to the payee under section 549.” Id. at 1028. Citing other cases, Mora established that “the transfer of a cashier’s check for purposes of section 547(b) occurs at the time a cashier’s check is ‘delivered’ rather than at the time the check is honored.” Id. at 1027, (citing In re Lee, 179 B.R. 149, 161 (9th Cir. BAP 1995), aff'd, Hall-Mark Elecs. Corp. v. Sims, 108 F.3d 239 (9th Cir.1997)).
In Lee, the BAP determined that a cashier’s check is transferred upon delivery to the payee, because it is at that point that the obligation to pay a cashier’s check becomes fixed. In re Lee, 179 B.R. at 161.10 The panel explained that “[a]l-though a purchaser cannot stop payment of the cashier’s check, he or she could return the cashier’s check or seek to have it cancelled as long as it is in his or her possession. Therefore, until delivery, the purchaser’s property rights in the cashier’s check are not transferred to the payee/holder.” Id. at 161-62.11
Under the controlling case law, it is the point in time when Scheu’s cashier’s check was delivered to Defendant that is crucial to the analysis in this action. Plaintiff has *756shown by competent evidence that Defendant did not have physical possession of the cashier’s check until after the bankruptcy petition was filed. That evidence would be sufficient to render the transfer avoidable under § 549(a). Therefore, Defendant had the burden to show that the check was delivered to his law firm prior to the filing of Scheu’s petition. Defendant failed to prove this is what occurred.12
Scheu “express-mailed” the cashier’s check to Defendant before noon on November 23, 2004. Scheu mailed his bankruptcy petition to the clerk in the same fashion on that same day, although later in the afternoon. The evidence presented confirms that the bankruptcy petition was filed by the clerk the following day, although the actual time of receipt is unclear. Nevertheless, the Court may not simply assume that the cashier’s check also reached the Lojek, Chtd. post office box on the day following mailing.13 Whether the letter containing the cashier’s check actually reached the Lojek, Chtd. post office box the following morning is clearly an issue of fact requiring competent proof. Absent a return receipt, some form of date/time stamp indicating when the envelope was received in Boise and placed in the Lojek, Chtd. post office box, or other evidence or testimony by a competent witness, Defendant has failed to show that the check arrived prior to November 29, 2004, the day Defendant endorsed and negotiated it.14
In short, Defendant has not met his burden of proving the transfer occurred prior to the filing of Scheu’s bankruptcy petition. Under § 549(a), the transfer is avoidable and Plaintiff may recover it from Defendant under § 550(a).15
II.
Because the Court concludes that Defendant received an avoidable transfer, *757and assuming Defendant returns the transferred amounts to Plaintiff, the Court must next consider whether Defendant may seek reimbursement from Scheu or Hui. The Code does not permit such relief.
If Defendant returns the avoidable transfer to Plaintiff, Defendant may assert a claim in the bankruptcy case. The Code provides:
A claim arising from the recovery of property under section 522, 550, or 553 of this title shall be determined, and shall be allowed under subsection (a), (b), or (c) of this section, or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition.
§ 502(h). While the Code recognizes a claim in favor of Defendant as against the bankruptcy estate, it does not authorize Defendant to assert a claim against Scheu, the debtor who paid Defendant, nor against Hui, the purchaser of the collateral for the debt. A recent BAP decision confirms this result. In Busseto Foods, Inc. v. Laizure (In re Laizure), 349 B.R. 604 (9th Cir. BAP 2006), the BAP determined that a creditor which was forced to return an avoidable transfer to a trustee held no claim against the debtor as a result of the avoidance. Id. at 609. Instead, the transferee’s rights are limited to a claim against the bankruptcy estate. See also, In re Verco Industries, 704 F.2d 1134, 1138 (9th Cir.1983).
Finally, Defendant contends that Scheu and Hui engaged in some sort of scheme to defraud him. Intent to deceive or defraud is a question of fact which may be inferred from the surrounding circumstances of the case. Farmers & Merchants State Bank v. Cracchiolo (In re Cracchiolo), 00.2 I.B.C.R. 84, 86 (Bankr.D.Idaho 2000). However, in this instance, the evidence demonstrates that Scheu intended in good faith to pay Defendant’s debt prior to filing for bankruptcy. Hui agreed to buy the vehicle for a price that would not only pay Defendant’s claim in full, but also provide Scheu funds to pay living expenses, as well as the filing fee for his bankruptcy petition. Scheu merely acted on that opportunity. There was no persuasive evidence presented that in doing so, Scheu or Hui intended to harm Defendant, or that either knew that the payment to Defendant could later be recovered by the bankruptcy trustee.16
Conclusion
Scheu’s payment to Defendant is avoidable as a post-petition transfer under § 549(a), and pursuant to § 550(a), Plaintiff may recover the transfer from Defendant. Furthermore, Defendant has no cognizable claim under the Bankruptcy Code against either Scheu or Hui individually, but rather has a claim within Scheu’s bankruptcy case. A separate judgment will be entered.
. All section references are to the Bankruptcy Code, Title 11, U.S.Code, as it existed prior to enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA”), Pub.L. 108-9, 119 Stat. 23 (Apr. 20, 2005). While this adversary proceeding was filed after the effective date of the BAPCPA, the underlying bankruptcy case was commenced on November 24, 2004, prior to the BAPCPA’s effective date of October 17, 2005. BAPCPA, 109 P.L. 8 § 1501(b)(1) ("the amendments made by this Act shall not apply with respect to cases commenced under title 11, United States Code, before the effective date of this Act.”) (emphasis supplied); see also, In re Kilroy, 354 B.R. 476, 496-97 (Bankr.S.D.Tex.2006); Kelsay v. Office of Lawyer Regulation, 2006 U.S. Dist. LEXIS 72546, at * 1-2. All Rule references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9036.
. Mr. Hui has not appeared in this action.
. Plaintiff, Defendant and Scheu each submitted several identical exhibits under different exhibit numbers or letters. Some of these exhibits were already in the Court’s record. For brevity and clarity, the Court will include only one cite when referring to an exhibit.
. The Court notes that the parties to the Promissory Note are Scheu and “Donald W. Lojek,” while the parties to the Security Agreement are Scheu and "Lojek Law Offices, Chtd.”
. Mr. Scheu testified that he was charged $13.95 for this special, overnight service.
. Scheu testified that approximately 20 or 30 minutes passed between the issuance of the first and second cashier’s checks.
. While it is clear that Scheu’s petition was received by the clerk on November 24, 2004, there is no evidence in the record to establish the precise time of day that occurred.
. In his complaint, Plaintiff seeks to avoid the "$3,100.00” payment. However, it is undisputed that the payment was actually $3,075. It is further undisputed that, as noted above, Defendant returned $12.86 to Mr. Scheu as the amount he overpaid. While arguably, Defendant is not necessarily entitled to credit against the transfer amount for the funds returned to Scheu, in the absence of an objection by Plaintiff, and given the small amount involved, tire Court will allow such a credit. Therefore, the Court deems Plaintiff’s request to be to avoid the net amount transferred, $3,062.14.
.Interestingly, Plaintiff did not state an alternative claim against Defendant to avoid the transfer as a pre-bankruptcy preference under § 547(b). As a result, the success of Plaintiff's claim against Defendant requires proof that the transfer occurred after, and not before, Scheu’s bankruptcy petition was filed.
. Cashier’s checks are treated differently than ordinary checks. For an ordinary check, the obligation to pay is fixed at the moment the check is honored by the payor’s bank. Id. at 1027 (citing Barnhill v. Johnson, 503 U.S. 393, 394-95, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992)).
. In Lee, the BAP was construing the California Commercial Code. However, the relevant provisions are identical to Idaho's version of the UCC. Idaho Code § 28-1-201(15), (21).
. The Mom court did not reach the question of whether the deposit of a letter containing a cashier’s check in a recipient’s post office box constitutes "delivery” for purposes of § 549(a). The parties have not cited, and the Court has not located, cases analyzing this point. However, the Court need not reach that question here. On the one hand, the evidence shows Defendant first had physical possession of the check on November 29, 2004. If "delivery” occurred when Defendant or his law firm first obtained possession of the check from the post office box, then based upon this evidence, the transfer took place post-petition. On the other hand, if delivery occurred when the letter containing the check was placed into the post office box by the postal service, Defendant failed to prove the date and time when that occurred.
. The Court could not, even if requested to do so, take judicial notice that "express” mail is delivered on the day following mailing. Fed. Rule Evid. 201(b) provides:
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Although Scheu’s bankruptcy petition reached its destination overnight, it cannot be said to be "generally known" that all items of overnight mail are delivered to the recipient the next day.
. Even assuming the Court could find that the cashier’s check reached the Lojek, Chtd. post office box on November 24, 2004, the day after it was mailed, Defendant must also prove that such occurred prior in time to the filing of Scheu’s bankruptcy petition on that same day.
. There was a discussion both in the briefing and during trial about whether Defendant and Lojek, Chtd. are distinct legal entities. However, because Defendant has not met his burden to demonstrate that the transfer occurred prepetition, and because he admits receiving and endorsing the check over to Lojek, Chtd., Defendant was the "initial transferee” and therefore liable for the avoidable transfer under § 550(a), and any distinction between the two entities is of no consequence here.
. The Court recognizes that this is perhaps a harsh result. Here, as an apparently over-secured creditor, Defendant accepted the payment from Scheu, and was obliged to release his security interest in the Jeep. As it now turns out, Defendant is relegated to the status of an unsecured creditor in Scheu's bankruptcy case, and has no recourse against either Scheu or the collateral. But as noted by the panel in Laizure, while Defendant may offer strong policy arguments in favor of reviving his claim against Scheu upon his repayment of the avoidable transfer, the Court is duty-bound to give the provisions of the Bankruptcy Code their plain meaning. 349 B.R. at 607. The Court is not at liberty to vary the outcome dictated by Congress even when it may result in inequity. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487427/ | Bassett, C. J.
The Court would have been desirous of more time in settling their opinion on a subject of so much importance, especially as this is the first case of the kind which has come before the Court since the passage of the Act of 1787. But this is one of those cases which arise during the trial of the cause, and without the determination of which the business cannot proceed. The question which the Court are now to decide is whether in the trial of a criminal charge, where an injury has been done to the person or property of a free Negro, when no white witness was present, the Negro who was injured and who is prosecutor may be sworn? And a majority of the Court are of opinion against the objection.
We do not say that a free Negro may be generally admitted as a witness, or in any cases between two white persons, or in a case where a free Negro is a prosecutor, as the present, if a white person were present, or other evidence could be procured. It is upon the particular circumstances of this ease, that the decision must be understood to be made, and its circumstances are totally different from the case of Collins v. Hall, lately adjudged in the Supreme Court. That was a. cause between two white *662persons, and there appeared no existing necessity for the admission of that witness. Here it is otherwise; if this prosecutrix be not sworn, the offender against the laws of the state will remain unpunished, and injustice will be the consequence. This is certainly one mode of redress, among many others, to those who receive personal injuries. It may indeed be considered, in a great degree, as the only mode of redress in the contemplation, of the legislature. The consequences of prohibiting the use of this, particular method of free blacks’ doing justice to themselves by being heard on a criminal prosecution, when they have no other witnesses, are too numerous and too important to escape consideration. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487428/ | Read, C. J.
Though the rule be general that hearsay evidence is illegal, yet this rule is subject to many exceptions. It would *664frequently be impossible to take advantage of legal evidence, without an occasional admission of hearsays to explain a narrative of facts. It is proper also to allow a witness to give his preface to his story, in most cases without interruption. But in the present case, what came from the negro man in his conversation with this witness is invalid db initia, and cannot be made competent by passing through another person. Many of our laws recognize the servile state of Negroes among us and seem to require them to be deprived of many privileges enjoyed by white persons. By a law made very early after the settlement of our government, Negroes were not allowed the trial by jury, nor to carry arms, meet in companies etc., 1 Body Laws 72, 73. An additional penalty is inflicted on the criminal intercourse of the sexes, 1 Body Laws 77. No Negro can be employed to whip a white person, 1 Del.Laws 307. By our Constitution, Article 4, s. 1, suffrages at elections are confined to free white persons. While these laws and this system continue in force, it would be both illegal and impolitic to admit the testimony of Negroes in any cases whatever wherein white persons are interested. These principles and ideas were lately delivered by the court in Sussex County, in the case of Collins v. Hall, although that was a case somewhat different from the one now before us. Therefore the witness can not give in evidence anything which he heard from Negro Richard.
Justice Clayton concurred.
The same witness, proceeding in his testimony, stated that about five minutes after Negro Richard had left him, he heard a gun discharged at the defendant’s house, and immediately after a voice cried out, “Be gone!” He did not know whose voice it was. Question by Attorney General, “Whose voice did you think it was?”
The defendant’s counsel objected to the answering this question. They insisted on the uncertainty of this kind of evidence. That especially in a case so highly penal the court and jury should have facts and not suppositions to judge by; and that the general rule is that what a witness believes and persuades himself merely, without any knowledge, is no evidence, 2 Harr.Ch.Pr. 613.
On the contrary, the. Attorney General contended, this was good evidence, that there were many things which in their nature did not admit of certain knowledge, of which this was one. No one could be absolutely certain of another’s voice at the distance of two hundred or three hundred yards, the real distance from the person who exclaimed in this case. Besides, this evidence *665is competent on another ground, as it corroborates other testimony of a less exceptionable nature.
The Court overruled the objection, and the witness proceeded to state his belief respecting the voice which he heard.
In the course of the trial it appeared that the principal evidence against the defendant came by confession from himself; that he acknowledged he had shot the negro man, but observed in his justification that it was late at night, about ten or eleven o’clock, when the accident happened, and that he apprehended the negro man was robbing his hen house, at the time when he fired his gun toward it, and unfortunately killed the Negro. Beside this, there were some circumstances proved which were at best presumptive of the defendant’s guilt. The counsel who argued for the defendant contended that confessions out of court, unattended with strong corroborative circumstances, were not to be regarded, and were the weakest evidence in the law. Fost. 243, Eden Pen.L. 166, 4 Bl.Comm. 357, Becc.Cr. 55, Constitution of Delaware. Second, that circumstances not amounting to the most violent presumption should never be considered as sufficient to convict. 1 Hale P.C. 635, 2 Hale P.C. 289, 4 Bl.Comm. 359, Eden Pen.L. 87, 88, 321; 3 Cas.Ch. 105.
The Attorney General opposed those principles in the extent to which they were carried. It is only in certain circumstances, and where it is entirely unsupported by other evidence, that confession is to be slighted. Generally, it is the very best evidence known in the law, 2 Harr.Ch.Pr. 604. As to presumptive evidence in criminal cases, it is always admitted, and in books of the highest authority it is much respected. Without it, not one criminal in one hundred could be brought to justice.
Bead, C. J.
I shall state the sentiments of the Court on the law which applies to this case; and as the jury recollect the evidence, they will be able to decide on that for themselves.
I apprehend the law generally to be as stated by the Attorney General. The confession of the defendant, in most cases, is certainly the best and highest evidence. This principle is laid down very fully and properly in 2 Harr.Ch.Pr. 604. It is true some modern authorities would seem to oppose this doctrine, but they only apply to cases which are unsupported by any evidence from circumstances in aid of the confession. This is clearly the principle in Leach 319. As to the rejection of presumptive evidence in criminal cases, even as far as is contended by the defendant’s counsel, I cannot admit the idea. It would free almost every criminal from the fears and the dangers of a prosecution. Our *666courts of criminal jurisdiction might as well be closed at once, as to countenance such doctrine.
But the counsel for the defendant further contend that as chief part of the evidence for the State is derived from the defendant’s confession, and as that confession is to be taken altogether and not by parcels, that the defendant was justifiable, or at least excusable, in shooting the deceased Negro when he was at the' hen house so late at night and, as the defendant supposed, was stealing his fowls. For the support of this doctrine they cite' Fost. 273, 298; Sty. 469; 1 Hale P.C. 486, 487, 488. They insist on the distinction between a person’s being engaged in a trespass and in a felony; and that in the latter case, it is justifiable' to kill another in defense of one’s property when about to be feloniously taken. I apprehend this doctrine also is carried too far.. It never could be excusable to kill a human creature for stealing; one fowl; and yet this is felony. Nothing would seem to be a. good justification but defense against a felonious attempt on a. man’s person or dwelling house, attended with force; see 1 Hawk.. P.C. 108, 1 Hale P.C. 486, 488. A man’s being caught in the smaller acts of felony can never amount to a justification.
The jury returned their verdict, “Not guilty.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487430/ | Bassett, C. J.,
said a majority of the Court were for admitting ex necessitate rel that she was a good witness by the common law and not excluded by the Act of Assembly from obtaining redress in that way; but if the assault had been on a white woman or man, he would not have admitted her.
Another witness proved that it was the Negro’s own assault.
Verdict of not guilty, and the Court refused to certify. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487431/ | April, 1794. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487432/ | Defendant had rented or purchased a house in Lewes with a yard projecting into the street and paled in. The Court seemed to think that, in a case like this, (although they admitted the general doctrine of every continuance being a fresh nuisance) notice ought to have been given to remove the nuisance before prosecution; because the defendant had not erected it himself, but only came in under the person who had erected it. This suggestion by the Court was made after the evidence and argument had closed. The Attorney General offered evidence, or said he could produce it, to prove notice. Defendant’s counsel objected that it was too late, the argument on both sides being concluded. The Court said they would, in such a case, upon a suggestion from themselves of a point overlooked by both parties, admit evidence and afford the opposite side an opportunity of answering it. The Attorney General, however, thought that the witnesses examined in the course of the trial had proved notice, and called no other evidence.
Verdict for State.
In this case paroi testimony was received to prove the location or the streets of Lewes.
See State v. Solomon Evans, post. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487433/ | The Court said they had long been unwilling to determine what was the character of a negro slave declared to be free at a certain time, whether he was a slave or a servant for years.
Curia advisare vult.
Petition dismissed, November 26,18Ó7. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487434/ | Per Curiam. Booth, C. J.
A deputy cannot make a deputy with the same powers, yet he may authorize the doing of a particular act. They said, likewise, that this writ was not (as it had been argued) obsolete, it being used through the state. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487436/ | The nuisance [was] committed by the person of whom Evans purchased the farm; to wit, in running the fence across the road —and continued by Evans — but no proof of notice to him to remove it. The case was not argued, but the Chief Justice Booth observed to me out of court that the intimation given in the case of the State v. Painter, respecting the necessity of notice to make a purchaser answerable for a nuisance, was the result of mature reflection. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487437/ | The Court discharged some of the defendants but made the attachment absolute against the father of the husband, and he purged himself of the contempt. | 01-04-2023 | 11-18-2022 |
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