Clark v. State

• Decision Date: 14 January 1972
• Citation: 287 A.2d 660
• Parties: Sidney J. CLARK, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 660

287 A.2d 660

Sidney J. CLARK, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Jan. 14, 1972.

Upon appeal from the Superior Court. Affirmed.

James M. Tunnell, Jr. and Paul P. Welsh, of Morris, Nichols, Arsht & Tunnell, Wilmington, for defendant below, appellant.

Francis A. Reardon, Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

WOLCOTT, C.J., CAREY and HERRMANN, JJ., sitting.

CAREY, Justice:

Appellant, Sidney J. Clark, has appealed his conviction of embezzlement after a jury trial in the Superior Court of New Castle County. The questions presented on appeal necessitate an elaboration of appellant's circumstances.

Appellant was admitted to the Bar of this state in 1957. In 1961, he was appointed a Judge of the Municipal Court of Wilmington. Appellant became well known throughout the state for this achievement. In 1966, appellant resigned from his judgeship and returned to full-time private practice. In 1968, appellant attempted to resign as a member of the Bar of the State of Delaware. The attempted resignation was ultimately refused by this Court, and appellant was disbarred for mishandling of his clients' funds. In Re Clark, Del.Supr., 250 A.2d 505.

In March of 1969, a Grand Jury returned the indictment ¹ upon which this case is based, charging a violation of 11 Del.C. § 635, as amended 50 Laws of Del., Ch. 299 § 1 ² (hereafter 'new' § 635).

Because of his aforementioned status in the community, appellant's disbarment proceedings and this subsequent indictment were the subject of coverage by the Wilmington newspapers. ³ Prior to trial, appellant moved for a change of venue or quashing of the indictment, containing that he could not get a fair trial due to the extent of the adverse publicity. The lower Court denied his motion; State v. Clark, Del.Super., 257 A.2d 388 (1969).

Additionally, appellant moved to quash the indictment on the grounds that the statute under which he was charged was unconstitutional. In an unreported letter opinion, dated June 9, 1970, the trial Court concurred in this contention and declared the statute unconstitutional as too vague. The Court further ruled, however, that the new provision had only been an attempt to amend the old, and as the amendment was void, the original provision (hereinafter 'old' § 635) was still effective and appellant could be tried thereunder. ⁴ The State filed an appeal of this ruling, but the appeal was dismissed as untimely. State v. Clark, Del.Supr., 270 A.2d 371 (1970).

Trial was ultimately held December 14, 15 and 16, 1970. During the jury selection, counsel was permitted to make Voir dire examination of the panel. Some of the questions were directed to the jurors' prior knowledge of the case, based on reports in the local press. Of the 19 jurors questioned, one was discharged by the court for cause; appellant exercised six preemptory challenges, and the State challenged none. Of the twelve who determined the verdict, one juror remembered reading about the matter, four had a 'vague recollection of reading about the matter,' and seven had no knowledge at all prior to the day of trial.

At trial, the State introduced evidence which showed that the appellant had successfully represented an injured minor in civil litigation in the U.S. District Court of Delaware in 1967--8. After payment of attorneys' fees, costs, and other bills, appellant had deposited a check for $61,340.22, drawn on the U.S. District Court, payable to appellant's client's father, as guardian, in his 'attorney's' checking account in a New Castle County bank. Appellant was then under a duty, after payment of certain outstanding medical and witness expenses, to create a trust account with the funds in a local bank in the name of his minor client. The State's evidence showed that this trust was never created, and that at the end of 1968, the 'attorney's' account contained only .30.

Appellant took the stand and, under thorough questioning by his attorney, recreated the events that led to the defalcation in question. Just prior to resigning from the bench in 1966, appellant began having medical problems. A series of operations in 1966 and 1967 relieved his difficulty, but during the same period, his wife was diagnosed as terminally ill. Until her death in April of 1968, appellant spent large sums of money in an attempt to cure his wife, or at least alleviate her predicament. This medical indebtedness was in addition to already existing debts of thirty or forty thousand dollars.

Shortly after the death of his wife, facing extensive indebtedness, appellant decided to 'take a chance.' The money which had been recently deposited from the aforementioned litigation was used to finance a gambling venture to Las Vegas in an attempt to win enough to pay all of his outstanding debts. The venture wholly failed.

Appellant then attempted to borrow $100,000 from several wealthy people he knew. Promises of loans totalling $70,000, contingent on arranging for the full $100,000, were elicited, but the full amount was never obtained and the loan was never consummated.

Throughout his uncontradicted testimony, appellant strenuously contended that he at all times intended to repay the money, that he never altered any books or forged any names, and that when questioned about the matter, he gave full, truthful answers.

Appellant's defense at trial was based on the theory that the State failed to prove the necessary intent element of embezzlement as required by Delaware law. Jury prayers which reflected his interpretation of this defense were submitted by him, but they were refused by the trial Judge.

Additional facts will appear as necessary.

I.

Appellant contends that 'old' § 635 under which he was convicted was not a valid law at the time of the defalcation because the 'new' § 635--later declared unconstitutional by the trial Court--appeared 'on the face of the statute books' of this State. which allowed application of 'old' § 635 for purposes of his prosecution is 'ex post facto judicial legislating' and that he was deprived of constitutional notice of the statute at the time of his acts. Reliance is placed on Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

In the Bouie case, the Supreme Court struck down the conviction of a sit-down demonstrator where the conviction was based on a narrowly-worded--and previously narrowly-construed--criminal trespass statute. In sustaining the conviction, the South Carolina Court reinterpreted the statute broadly. The Supreme Court ruled that, in view of the prior narrow construction of the statute, the defendant could not be said to have had notice that the acts he did were forbidden. The facts of Bouie make it inapposite here. The problem here presented is not the application of a statute to particular facts; but rather, the rules that are applied to determine orderly statutory succession. Furthermore the trial Court did not apply a unique or new principle of law.

At least 40 years ago, Delaware recognized the rule that a prior statute's validity continues where there has been an attempted change by an invalid amendment. See Wilmington Trust Co. v. Highfield, Del.Supr., 4 W.W.Harr. 394, 153 A. 864 (1931). If 'new' § 635 is unconstitutional--a question we do not pass upon ⁵--then it has been invalid from its inception and has never amended 'old' § 635. 'An unconstitutional act is not a law; . . .; it is, in legal contemplation, as inoperative as though it had never been passed.' Norton v. Shelby County, 118 U.S. 425 at 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178 (1886).

Extensive research reveals no prohibition against the application of this rule of law in a criminal case. See Commonwealth v. O'Harrah, 262 S.W.2d 385 (Ky., 1953); Sawyer v. State, 100 Fla.1603, 132 So. 188 (1931). Application of a rule such as this appears to be solely a matter of state law. Cf. Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941).

Appellant's objection, therefore, is without merit. The test for statutory notice '. . . is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.' United States v. Harriss, 347 U.S. 612 at 617, 74 S.Ct. 808 at 812, 98 L.Ed. 989 (1954). As a citizen of this state, appellant is presumed to know the statutes and existing rules of law of this state, and we find no evidence which would excuse ignorance of their status. Compare Long v. State, Del.Supr., 5 Terry 262, 65 A.2d 489 (1949).

II.

Appellant next argues even if 'old' § 635 is viable, he cannot be prosecuted under it because: (1) he, as an attorney handling a client's funds, is a fiduciary, not a bailee; and (2) the specific section--11 Del.C. § 642--dealing with embezzlement by fiduciaries, was repealed by 50 Laws of Del. § 299.

A review of the statutes shows the inaccuracy of these contentions. 'Old' § 635 was a general provision and violation was a misdemeanor. 11 Del.C. § 642 dealt with a particular type of bailment--fiduciaries--and made defalcation by them a felony. This appears to reflect the Legislature's determination at that time that dishonesty by these particular bailees should be more harshly punished due to the nature of the trust imposed on them. Even if this section has not been repealed, there is still no reason why the State could not prosecute a fiduciary under the general section applicable to all bailees as in this case. Commonwealth v. Cygan, 212 Pa.Super. 384, 243 A.2d 476 (1968); State v. Carr, 118 N.J.Law 233, 192 A. 36 (1937); Wallis v. State, 54 Ark. 611, 16 S.W. 821 (1891); Cf. Cooke v. State, 9 Md.App. 303, 263 A.2d 620 (1970); Gordon v. State, 5 Md.App. 291, 246 A.2d 623 (1968).

Appellant points to the case of State v. Warwick, Del.Super., 9 Terry 568, 108 A.2d 85 (1954), as standing for the proposition that a trust relationship is never a bailment. The defendant in that...