Hodsdon v. Superior Court In and For New Castle County

• Court: United States State Supreme Court of Delaware
• Writing for the Court: WOLCOTT; HERRMANN
• Citation: 239 A.2d 222
• Decision Date: 06 February 1968
• Parties: William Merrill HODSDON, Petitioner, v. The SUPERIOR COURT of the State of Delaware, IN AND FOR NEW CASTLE COUNTY, and the Honorable William T. Quillen, a Judge of said Court, Respondents.

Page 222

239 A.2d 222 William Merrill HODSDON, Petitioner,
v.
The SUPERIOR COURT of the State of Delaware, IN AND FOR NEW
CASTLE COUNTY, and the Honorable William T.
Quillen, a Judge of said Court, Respondents. Supreme Court of Delaware. Feb. 6, 1968.
Reargument Denied Feb. 27, 1968.

Page 223

Upon petition for rule to show cause why a writ of prohibition should not issue. Petition denied.

William E. Taylor, Jr., Wilmington, for petitioner.

Ruth M. Ferrell, Deputy Atty. Gen., Wilmington, for respondents.

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

HERRMANN, Justice.

The question is whether a writ of prohibition may be utilized to review the order of the Superior Court denying the motion to dismiss the indictment in this case.

The basic facts are these:

The petitioner, William Merrill Hodsdon, was indicted by the Grand Jury for violating 11 Del.C. § 532, ¹ in that:

'* * * on or about the 26th day of September and divers other times over a period of time beginning in approximately July 1966, in the County of New Castle, did publicly defile, defy, or cast contempt either by word or act upon the flag of the United States of America, by displaying simultaneously on the front of his residence at 3202 Fernwood Place, Wilmington, Delaware, the United Nations flag and the United States flag, with the United Nations flag in the position of honor on the right side of his house and the United States flag in the subordinate position on the left side of his house and flown in a half-mast position, in violation of Title 11, Del.C. § 532.'

The petitioner filed a motion to dismiss the indictment, asserting (1) that § 532 is unconstitutional in that 'it fails to provide

Page 224

any standard by which the defendant's conduct may be judged' and, therefore, its application to the petitioner would violate the due process clauses of the Federal and State Constitutions; (2) that § 532 is unconstitutional in that, as applied in the indictment, it violates the petitioner's right of freedom of speech under the Federal and State Constitutions; and (3) that § 532 is so vague and uncertain that it fails to properly charge a crime in violation of Del.Const. Art. I, § 7, Del.C.Ann.

The Superior Court denied the motion to dismiss the indictment, holding that § 532 is constitutional and valid. The instant petition followed, seeking a rule upon the Superior Court to show cause why a writ of prohibition should not issue, asserting that a trial of the petitioner upon the indictment would constitute denial of due process and violation of the petitioner's freedom of speech; that, therefore, the Superior Court lacks jurisdiction over the petitioner or the subject matter, and any judgment of conviction resulting from such trial will be illegal and void. Thereupon, the petitioner requests this Court to issue a rule upon the Superior Court to show cause why a writ of prohibition should not issue, staying further proceedings in the Superior Court, and prohibiting the Superior Court from attempting further to exercise jurisdiction over the petitioner by trying him for the offense charged, on the ground that § 532 is unconstitutional and void.

The petition for the rule must be dismissed, in our opinion, for the reason that its purpose is the review by this Court of an interlocutory order of the Superior Court in a criminal case, without the lack of jurisdiction of that Court over the cause or the person being reasonably apparent on the face of the record. In the final analysis, the sole objective of the petitioner at this stage is to attack the constitutionality of § 532. That Statute stands constitutional, valid, and enforceable until declared otherwise by the courts. Therefore, it cannot be said that, on the face of the record, a lack of jurisdiction in the lower court over person or cause is reasonably apparent in the instant case. This situation is thus reduced simply to an effort on the part of the petitioner to have this Court review an interlocutory order of the Superior Court in a criminal case. This we may not do. The petitioner must await a final judgment of the...