Miller v. State

• Decision Date: 08 January 1958
• Citation: 11 Terry 579,137 A.2d 388,50 Del. 579
• Parties: , 50 Del. 579 Walter S. MILLER, Appellant, v. The STATE of Delaware, Appellee.
• Court: United States State Supreme Court of Delaware

Page 388

137 A.2d 388

11 Terry 579, 50 Del. 579

Walter S. MILLER, Appellant, v. The STATE of Delaware, Appellee.

Supreme Court of Delaware.

Jan. 8, 1958.

Henry A. Wise, Jr. Wilmington, for appellant.

Frank O'Donnell, Chief Deputy Atty. Gen., for appellee.

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

SOUTHERLAND, Chief Justice.

Appellant Miller was convicted of the possession of marijuana cigarettes, in violation of 16 Del.C. §§ 4701-4702.

The State proved the following:

Miller was observed by police officers as he was walking along the pavement of a public street in Wilmington. One of the officers followed him and called to him. Miller was then seen to step off the curb between two parked cars. He made a movement with his hand as if throwing something to the ground. The officer saw a white object fall. Miller continued to walk around one of the cars and returned to the pavement where he was arrested. Going to the place where Miller had thrown the object, the officer found a small roll of cigarettes. These were shown to contain marijuana. The jury returned a verdict of guilty and a motion for an acquittal or a new trial was denied. Miller appeals.

Numerous points are raised, but in our opinion only one merits serious consideration.

Miller testified in his own behalf. His defense was that the package of cigarettes was never in his possession. He said that just before he was arrested he had come out of his brother's house on Lombard Street. In cross-examination the Deputy Attorney General asked the following question:

'Now, over the past years, your brother has been arrested and convicted of narcotics charges on many occasions?'

There was an immediate objection, and a motion for a mistrial. The court denied the motion 'at this time', but asked the State to produce authority for the question. A recess was taken and the jury was excused.

The court having reconvened, the following occurred before the jury was recalled:

'Mr. O'Donnell: I will withdraw the question.

'The Court: That may not take care of the damage that has been done. What are the grounds for your withdrawal, Mr. O' Donnell?

'Mr. O'Donnell: That the record has been checked and that the information previously furnished me was in error.'

After a suggestion that defendant's counsel be permitted to examine the Deputy Attorney General upon the scource of the error, the court said:

'I don't know that, in the interests of justice, that it is necessary. If the Attorney General withdraws this and states that the information which you just gave was in error, and, therefore, you withdraw the question, and I instruct the jury to ignore it, is sufficient at this time to rectify any damage that might have been done.

'Now, if there is a conviction in this case, I will, again, reconsider your motion seriously, Mr. Wise, but I think that at this time, rather than to waste the time, I will deny your motion, Mr. Wise.

'We will bring the jury back and try to straighten this out on the record.'

The jury having returned, the following occurred:

'Mr. O'Donnell: Your Honor, I will withdraw the last question for the reason that I have determined that information previously furnished me was in error.

'The Court: The question was, isn't it a fact that the brother, from whose house the defendant was supposed to have emerged, had been convicted on another occasion, and you say that that is an error insofar as you can find?

'Mr. O' Donnell: Yes, sir, I was in error.'

It seems plain that it was thereupon the duty of the court explicitly to tell the jury not only that the question put by the prosecuting officer should be disregarded and the jury should not give it any consideration whatever, but also that there was no evidence before them of any conviction of the defendant's brother on narcotic charges. Had this been done, the prosecution's error would, we think, have been cured. Although it is a serious mistake for the prosecuting officer to ask a question of this sort without definite information upon which to base it, his good faith in asking it is a circumstance that will be accorded weight on a motion for a mistrial. In such a case an explicit instruction from the court ordinarily cures the error. See 39 Am.Jur. 'New Trials', § 65; 109 A.L.R. p. 1089, annotation. Here there is no question about the good faith of the Deputy Attorney General. The mistake was wholly innocent. But such mistakes may nevertheless have a damaging effect. In such a case as this--possession of narcotic drugs--if it had been the fact that the defendant's own brother, whose house he had just left, had been involved in illicit drug transactions, the matter would not only have been a proper subject of inquiry (3 Wharton's Criminal Evidence, § 1217), but a circumstance persuasive of guilt.

Unfortunately, the court's caution to the jury compounded the prosecutor's error. The court said:

'Ladies and Gentlemen: I am permitting that question to be withdrawn, and I will warn you that you should not be prejudiced in any way because of that...