Halko v. State

• Decision Date: 07 November 1961
• Citation: 4 Storey 180,54 Del. 180,175 A.2d 42
• Parties: , 54 Del. 180 John J. HALKO, Jr., Appellant, v. STATE of Delaware, Appellee.
• Court: Supreme Court of Delaware

Page 42

175 A.2d 42

4 Storey 180, 54 Del. 180

John J. HALKO, Jr., Appellant, v. STATE of Delaware, Appellee.

Supreme Court of Delaware.

Nov. 7, 1961.

John M. Bader, of Bader & Biggs, Wilmington, for appellant.

W. Laird Stabler, Jr., Deputy Atty. Gen., and Kenneth W. Lewis, former Deputy Atty. Gen., for the State.

SOUTHERLAND, C. J., and WOLCOTT, J., and MARVEL, Vice Chancellor, sitting.

SOUTHERLAND, Chief Justice.

John J. Halko, Jr., was charged with four violations of the motor vehicle code: (1) driving under the influence of liquor; (2) driving while his license was under a period a revocation; (3) having in his possession a revoked license; and (4) leaving the scene of an accident. He was convicted of the first three charges, and acquitted of the fourth. He appeals.

We consider the evidence in the light most favorable to the State. So viewed, the facts proved are these:

Between 1:00 and 1:30 a. m. on Sunday, October 18, 1959, Edward R. Holler, Jr. was driving easterly on the Boxwood Road in suburban New Castle County. There was only one other car in view on the road, a 1959 Imperial. It was 'weaving all over the road'. Holler followed the car for about a quarter of a mile and then passed it. The driver was slumped over the wheel.

About 1:30 a. m. William D. Forestieri was driving easterly on Boxwood Road and saw what he thought was a 1959 Cadillac 'weaving all over the road'. Forestieri was afraid to pass it, but when it pulled over to the curb near the Conrad School he passed the car slowly. No one was in the car but the driver.

Forestieri continued on the Boxwood Road to Maryland Avenue, a Wilmington Street extending southwesterly into suburban New Castle County. It intersects the Boxwood Road diagonally from northeast to southwest.

The second car pulled away and followed Forestieri. It caught up with him at the intersection and collided with the back of Forestieri's car. It then passed Forestieri's car. In the intersection Forestieri saw the driver in the glare of the streets and of the lights of a gas station. He later identified Halko as the driver.

Halko proceeded easterly on the Middleborough Road, an extension of Boxwood Road. At times he was off the road. He turned left, i. e., north, into the DuPont Road, Forestieri following him. He followed the DuPont Road to Valley Road, where in turning right he collided with a stop sign. He went east on the Valley Road, and Forestieri continued on the DuPont Road north to its intersection with Maryland Avenue. During the time when he was following Halko, Forestieri got Halko's license number. (He apparently reversed two digits of a six-figure number, but this is of no moment.)

Reaching Maryland Avenue he went into the office of the Park Cab Company and reported the matter to Mr. Paul Perry. He told Perry that he would try to find the car. He found it in front of the premises of the H. and S. Manufacturing Company, Halko's company, 15 Brookside Drive. The motor had been cut off, but the head lights were on. Halko was at the wheel, apparently dead drunk. Forestieri returned to Perry's office, and told Perry he would go back to the car and wait. Later Perry also drove to the premises. In due course the police were notified. Two Wilmington police and later two State police arrived. The matter was outside of Wilmington and the State police handled it.

All four officers testified to Halko's condition. He was so drunk he could not be roused by voice, by tapping on the window, or by shaking; he had to be supported. An empty wine bottle was between his legs. The officers tried to question him, but he could say nothing intelligible. He was mumbling about 'a pipe'.

He was taken to the State Police Station. The police found that he had a duplicate of an operator's license that had been revoked. Prosecution followed, first in the Court of Common Pleas and then in the Superior Court.

The defense to the first and second charges, involving the operation of his car, was an alibi. Halko testified he drove from Wilmington that night to his place of business to do some work; while he was there he was on the telephone, on and off, from twelve thirty to one thirty, talking to Russell Lombardi, an employee of his, and also to his former wife. After finishing his work he concluded to wait in his car for Lombardi. When the City Police arrived he 'played possum' to keep out of trouble. This was his story.

Mrs. Halko, Lombardi, and another employee testified in support of the alibi.

Halko's defense to the charge of having in his possession a revoked license was that he had forgotten that he had it.

The jury found him guilty on these three charges.

The ingenuity of counsel presents us with seven alleged errors in the trial. Only one of them has any substantial merit, the objection to the charge to the jury on the defense of alibi. As will later appear, the case must go back for retrial on the first two charges because of error in this matter. But on the retrial defendants will probably renew some of the points now before us. Hence, for the guidance of the trial court, we shall rule upon certain of these objections, although several of them were not even made at the trial.

I. It is said that the verdict was against the weight of the evidence. The testimony leads us to the contrary conclusion. A summary of the State's case is set forth above. The jury was obviously justified in rejecting the defense of alibi. The defendant's story that he was 'playing possum' when found in the car is demonstrably false.

In stating this obvious conclusion we do not wish to yield assent to the idea that it is this Court's duty to pass upon the weight of the evidence. It would be an exceptional--an extraordinary--case, indeed, to require us to undertake that task.

The argument is wholly without merit.

II. It is said that the defendant was prejudiced by questions put to him by the prosecutor on cross-examination.

The facts leading up to the matter are these:

On October 24, 1958, Halko's license was revoked for a year. On December 9, 1958, it was surrendered to the Motor Vehicle Department.

Halko tried to explain why he kept in his possession a duplicate of the license. He testified it expired September 27, on his birthday; and on that day he obtained a duplicate operator's license because he had moved. At the time of his arrest, he said, he had forgotten that he had it.

The prosecutor attacked the explanation. He said:

'Q. May I suggest, Mr. Halko, that you filed for a duplicate license because, at the time, there were pending against you a criminal charge, a [on?] conviction of which you would have lost your driving privileges.'

This was objected to and the court was inclined to disallow the question. But the purpose of the question having been explained, the court allowed it and the defendant did not except.

We think the question was proper. The State was obviously seeking to show that the defendant's motive in obtaining the duplicate was to have a license in his possession in order to evade the law if he should be compelled to turn in his original license--as, in fact, he was later compelled to do. The question was therefore relevant to an issue made by the defendant himself. If relevant, it may not be excluded simply because it referred to the pendency of another criminal charge.

1 Wigmore, Evidence (3rd Ed.), § 216.

III. Error is alleged in the following incident:

After the jury had been charged and had deliberated for a while, it sent to the judge then presiding this question:

'Can a jury suggest or recommend that mercy be shown in the sentencing of the defendant found guilty of a charge?'

The court gave the following instruction:

'The short answer to your question is 'Yes', a jury may so recommend.

However, I wish to remind you that your primary, in fact your sole function in this case is to decide the guilt or innocence of the accused. The sentence or punishment that may be meted out is a matter set by statute or assigned, in part, to the discretion of the Judge, and is not within the province of the jury. Nevertheless, you may, if you see fit, include a recommendation with the verdict.'

We see nothing wrong in so instructing the jury. The practice of adding to a jury verdict a recommendation of mercy is and has been widespread in this State. It is true that it has no legal effect. Powell v. State, 7 Terry 551, 46 Del. 551, 86 A.2d 371. And in some cases an instruction that such a recommendation may be made has been held to be erroneous, e. g., People v. Lynch, 284 N.Y. 239, 30 N.E.2d 577. The danger is, of course, that the instruction may encourage a compromise verdict; but here the jury was plainly told that its sole function was to decide the guilt or innocence of the accused and that the sentence was in the discretion of the judge alone. This was a caution that the recommendation carried no legal force. Probably it would be well if hereafter the trial judge would expressly add to this caution the admonition that the recommendation should never be made the basis of a compromise verdict. But we do not believe that the charge given, under the circumstances of this case, was reversible error.

IV. Defendant contends (1) that he was unlawfully arrested, because (a) the Uniform Arrest Act was not followed, and (b) because the officers did not see him operate his car; and (2) that his car was unlawfully searched.

(1)(a). We have had occasion to consider the provisions of the Uniform Arrest Act (11 Del.C. § 1902) in recent cases. De Salvatore v. State, Del., 163 A.2d 244; Cannon v. State, Del., 168 A.2d 108. Its provisions are clearly applicable to the case before us. A driver of a motor vehicle complains to the police that another driver, apparently intoxicated, has collided with his car and with a stop sign. At two o'clock in the morning the police find that driver in his car, slumped over the wheel unconscious with the lights on. The car is in front of...