Longoria v. State

• Decision Date: 28 March 1961
• Citation: 168 A.2d 695,53 Del. 311,3 Storey 311
• Parties: , 53 Del. 311 Jose C. LONGORIA, Defendant Below, Appellant, v. STATE of Delaware, Appellee.
• Court: Supreme Court of Delaware

Page 695

168 A.2d 695

3 Storey 311, 53 Del. 311

Jose C. LONGORIA, Defendant Below, Appellant, v. STATE of Delaware, Appellee.

Supreme Court of Delaware.

March 28, 1961.

Clement C. Wood, Chief Deputy Atty. Gen., and Murray M. Schwartz, Deputy Atty. Gen., for the State.

Courtney H. Cummings, Jr., and Richard J. Baker, Wilmington, for defendant.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

BRAMHALL, Justice.

Defendant in this appeal alleges error on the part of the trial judge in (1) refusing to permit defendant to waive the right of trial by jury after the State had objected, insisting upon a jury trial; (2) refusing to permit defendant to interrogate members of the jury relating to the mental illness of defendant; (3) refusing to charge the jury as requested by defendant in defining the crime of murder; (4) refusing to apply the Durham Rule in charging the jury on the defense of insanity; (5) error in explaining in charge the test of mental illness under the M'Naghten Rules; (6) defining a deadly weapon; (7) admitting in evidence bloodstained clothing of deceased; (8) weight and sufficiency of evidence to sustain conviction of murder in the first degree.

Defendant, while sitting in the Warner Theatre, a motion picture theatre in the City of Wilmington, with his wife and four-year old child, stabbed the child in the chest nine times with a pocket knife, killing him instantly. The circumstances leading up to the killing, which were mostly undisputed, are substantially as follows:

Defendant and his wife had become estranged and were living separate and apart, the child being with the mother. Defendant telephoned his wife on the morning of the murder and asked to see his son. His wife refused to meet defendant. Defendant called the child to the telephone to ask him to persuade his mother to meet defendant. After some further discussion between defendant and his wife, it was agreed that they would meet at the Warner Theatre. Defendant was attempting to effect a reconciliation with his wife. In the theatre defendant and his wife engaged in a somewhat heated discussion, apparently with reference to the child. Defendant finally said, 'If I can't have him, nobody else can.' He than took his pocket knife and with it stabbed the child nine times in the chest, killing him instantly. Defendant immediately after the commission of the act admitted that he killed the child. When the police officers arrived, defendant appeared composed and requested one of the officers to identify himself.

At the trial, the only defense offered by defendant was that of insanity. The jury did not accept defendant's defense but convicted him of murder in the first degree. Defendant appeals.

Defendant during the trial and in this Court, raised numerous objections, as hereinbefore set forth, which we now consider.

1. Refusal of the trial judge to permit defendant to waive his right of trial by jury.

Defendant expressly waived his right to a jury trial. Rule 23(a) of the Rules of Criminal Procedure of the Superior Court Del.C.Ann., provides that a criminal case shall be tried by a jury unless the defendant shall waive in writing his right to a jury trial, with the approval of the Court and the consent of the State. The State insisted that the case be tried by a jury, contending that there could be no effective waiver of the right of trial by a jury without the consent of the State. The State further alleged that under 11 Del.C. § 4701, it is provided that the defense of insanity must be determined by a jury impaneled on the trial. The trial judge agreed with the State's contention and overruled defendant's motion, ordering the case to be tried before a jury. Defendant contends that this was error.

The State raises the objection that defendant's motion was not in writing as provided by the rule. We overrule this objection, since it was not made in the court below and since the trial judge proceeded to dispose of defendant's motion on its merits.

Defendant contends that under Article I, Section 7, of the Constitution of this State, Del.C.Ann., trial by jury is a personal right of defendant which he may waive or insist upon in his sole discretion. Defendant further alleges that the area of discretion given to the trial judge under Rule 23(a) of the Superior Court is limited solely to whether or not defendant made a competent waiver. He asserts that the refusal of the State to give its consent to, and the refusal of the trial judge to permit, a trial by the Court amounts to an arbitrary exercise of their privilege and would frustrate and nullify the sole purpose of the rule.

We think that the State was entitled to insist that the case be tried before a jury. Beginning with the case of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, there is a long line of cases in both the federal and state courts upholding the right of the State or government to insist upon a trial by jury. See Annotation in 51 A.L.R.2d 1346, Accused--Right to Trial by Jury. In addition, 11 Del.C. § 4701 provides:

'If upon the trial of any person upon any indictment or information in the Superior Court, the defense of insanity is made and established to the satisfaction of the jury impaneled on the trial, and the fact charged is proved, the jury shall return a verdict of 'not guilty by reason of insanity.'

Rule 23(a) of the Rules of Criminal Procedure of the Superior Court specifically states that cases required to be tried by a jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the Court and the consent of the State. Contrary to defendant's contention, he has no constitutional right to be tried by the court. See Patton v. United States, supra; State v. Mead, 4 Blackf., Ind., 309, 30 Am.Dec. 661; Sammons v. State, 53 Ga.App. 369, 185 S.E. 923. Both the State and the trial judge at the time of defendant's motion were aware of the fact that at least one of the defenses presented in this case would be the mental illness of defendant. Passing the troublesome questions of whether defendant was mentally competent to waive a jury trial and the effect to be given to the provisions of § 4701, we think that the State was fully justified under Rule 23(a) in refusing defendant's motion.

2. Refusal of trial judge to permit defendant to interrogate members of the jury relating to the mental illness of defendant.

Defendant submitted the following request for voir dire examination: 'Have you formed or expressed an opinion that would exclude mental illness as a defense to this prosecution?' The trial judge refused to permit defendant to put this question to the jury, saying that it was covered generally by the previous questions put to the jury.

Defendant relies upon Rule 24 of the Rules of Criminal Procedure of the Superior Court, which provides that the Court may permit the defendant or his attorney to examine prospective jurors, or it may itself conduct the examination, in which event the Court shall permit defendant or his attorney and the Attorney General to supplement the examination by such further inquiry as it shall deem proper. Defendant contends that his question was reasonably calculated to ascertain if any prejudice might exist on the part of the jury and that the trial court's refusal to permit the question amounted to an abuse of discretion.

There is no merit to this contention. The trial court at the beginning of the case interrogated the jury in the customary manner in this State by asking questions relating to 'any formed or expressed opinion as to the guilt or innocence of the accused' and as to the existence in their minds of any prejudice or bias of any kind. In refusing defendant's request, the trial court stated that these questions by implication sufficiently dealt with the subject matter raised in the question of defendant. The right of counsel to examine the jury upon the voir dire is a matter which lies largely within the discretion of the Court. There is no evidence of abuse of discretion or of prejudice here.

3. Refusal of the trial judge to give in his charge the definition of crime of murder requested by defendant.

Defendant requested the trial judge to charge the jury with respect to the common law definition of murder as follows:

'At the common law, murder was, and still is, defined to be when a person of sound memory and discretion unlawfully kills a human being with malice aforethought, either express or implied.'

The trial judge refused defendant's request.

As we understand defendant's objection, it is that the trial judge omitted from his charge the words 'sound memory and discretion'. Defendant contends that a proper definition of the crime of murder must necessarily include this or similar language.

The charge given by the trial judge was, in substance, taken from the language of this Court in the case of Bantum v. State, 7 Terry 487, 85 A.2d 741. Except perhaps by inference, the correctness of the language used in this charge is not challenged.

The definition of murder as contained in defendant's prayer is taken from the common law definition as found in Blackstone's 'Commentaries', 4 Bl. 195, which is, in substance, the definition given by Sir Edward Coke. This language was used by the courts of this State in defining the crime of murder until sometime after the passage of the statute dividing the crime of murder into murder in the first degree and murder in the second degree, 11 Del.C. §§ 571 and 572, being set forth in the Code of 1852 as §§ 2842 and 2843.

We think that the definition of murder as defined by the trial judge was correct. The fact that it did not contain the words 'of sound memory and discrecretion' is not important. They are not necessarily included in a proper definition of murder. The language used by the trial judge is the language which has been followed in this state for many years. See State v. De Paolo, 3 Boyce 176, 84...