Scott v. State

• Court: Supreme Court of Delaware
• Writing for the Court: SOUTHERLAND; BRAMHALL
• Citation: Scott v. State, 117 A.2d 831, 49 Del. 401, 10 Terry 401 (Del. 1955)
• Decision Date: 14 November 1955
• Parties: , 49 Del. 401 Ida M. SCOTT, Appellant, v. STATE of Delaware, Appellee.

Page 831

117 A.2d 831

10 Terry 401, 49 Del. 401

Ida M. SCOTT, Appellant, v. STATE of Delaware, Appellee.

Supreme Court of Delaware.

Nov. 14, 1955.

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

Herbert L. Cobin, Chief Deputy Atty. Gen., for the State.

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

BRAMHALL, Justice.

A petition for reargument was filed by the State after the filing of the former opinion in this case, Del., 113 A.2d 880. This court granted a limited reargument upon the following basis:

'The question to be argued is limited to the sufficiency of the evidence in the case to establish the guilt of the defendant beyond a reasonable doubt under the rules of law applicable to circumstantial evidence.'

The objection of the State is bottomed upon the construction which this court in a former opinion placed upon the findings of fact of the court below relating to an alleged private meeting between defendant and Mrs. Quigley at the latter's apartment just before the operation was performed. In that opinion this court interpreted the language of the lower court as implying at least that no such meeting occurred. There being no other testimony tending to show any direct connection between defendant and Mrs. Quigley, this court held that the findings of fact as stated by the trial court were insufficient to sustain a conviction.

The State contends that the lower court made no specific findings relative to this alleged meeting, and that therefore such conclusion by this court was unwarranted. The State also claims that by reason of the general finding of guilty by the lower court, coupled with the further fact that no request for specific findings had been made, any doubt about the meaning of this particular part of the court's findings must be resolved in favor of the State.

Relative to this alleged meeting the lower court, in referring to the arrival of defendant and Mrs. Compton at the Quigley apartment, said: 'Defendant then went into another room while Alice Quigley performed an act or acts intended to procure an abortion.' [Italics supplied.] This court concluded from the use of the word 'then' that the lower court had rejected Mrs. Compton's testimony that the defendant and Mrs. Quigley talked together privately before the abortion was performed. In reaching this conclusion we noted that the fact was in dispute. Moreover, Mrs. Compton in cross-examination admitted that in a previous hearing she had not testified to the private meeting. Hence the failure of the trial judge to resolve this disputed fact could be interpreted as a rejection of Mrs. Compton's testimony.

After further argument, however, we think that the opinion of the trial court may possibly be construed as one that merely failed to make complete findings of fact.

Rule 23(c) of the Rules of Criminal Procedure of the Superior Court, Del.C.Ann., provides:

'Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially.'

In this case no request was made that the lower court find the facts specially. Nevertheless, that court undertook to make specific findings. We think that a proper construction of the rule is this: If specific findings are not requested, the court may either (a) render a general verdict without any findings, or, (b) may on its own motion make specific findings. If the former course is followed, all pertinent questions of fact, if there is sufficient evidence to support them, will be resolved in favor of the findings of the lower court. Blunden v. United States, 6 Cir., 169 F.2d 991. But, if the latter course is followed, the findings ought to be complete. Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L.R.A., N.S., 1142. See also cases cited in 53 Am.Jur. (Trial), Sec. 1134, p. 788, n. 5.

The determination of the question as to whether or not the private meeting between defendant and Mrs. Quigley occurred is of vital importance. If the meeting took place as testified to by Mrs. Compton, a direct connection between defendant and Quigley is implied, from which, with the other circumstances leading up to this alleged meeting, the lower court would have been justified in inferring that the purpose of the meeting was in furtherance of the criminal act proposed to be accomplished, for which both defendant and Mrs. Compton admittedly met Mrs. Quigley at Mrs. Quigley's apartment. If it did not occur, then there is no evidence in this case to show any prior connection between defendant and Mrs. Quigley and the reversal of the lower court by this court in our former opinion in this case must stand.

The only testimony relative to the alleged meeting between defendant and Mrs. Quigley is the testimony of Mrs. Compton. In cross-examination she admitted that at a previous hearing she had not testified as to the private meeting. In view of the somewhat uncertainty of the language of the lower court, we are reluctant to accept its language as to this meeting as conclusive.

The failure of the lower court to make a specific finding upon a material issue does not upon appeal lay upon this court the duty of examining and analyzing the evidence for the purpose of making its own findings. See United States v. Esnault-Pelterie, 299 U.S. 201, 57 S.Ct. 159, 81 L.Ed. 123. Neither do we think that under the circumstances of this case a new trial is necessary. The pertinent evidence is before the court. Under such circumstances, the appellate court will generally remand the case with directions to make a finding based upon the evidence, or, in a case where the finding is ambiguous, to make a more specific finding. Hunter v. Scruggs Drug Store, Inc., 4 Cir., 113 F.2d 971; McClure v. O'Henry Tent & Awning Co., 7 Cir., 184 F.2d 636, 639; United Shoe Machinery Corp. v. Kamborian, 1 Cir., 160 F.2d 461. See Moore's Federal Practice, Vol. 5, 52.06(2), p. 2662. While the authorities here cited are federal decisions relating to civil cases under Fed.Rules Civ.Proc. rule 52 (a), 28 U.S.C.A., we see no reason why they should not be equally applicable in a proper case to Rule 23(c) of the Rules of Criminal Procedure of the Superior Court.

We are of the opinion that the judgment in this case should be opened and the case remanded to the lower court with instructions as hereinafter set forth.

Defendant has objected to the sufficiency of the first count of the indictment. In the former opinion of this court in this case, we considered it to be unnecessary to pass upon the questions raised by this objection. In view of our present decision to remand the case to the trial judge for the determination of the question of fact as to whether or not there was a private meeting between defendant and Alice Quigley immediately prior to the commission of the act or acts for the purpose of causing an abortion, it now becomes necessary that these objections,--which were fully briefed and argued,--be considered.

In the lower court, after the trial, defendant filed a motion purporting to be pursuant to Rule 34 of the Rules of Criminal Procedure of the Superior Court, in which she alleged: (1) that 5296 of the Revised Code of Delaware, 1935, as amended (now cited as Title 11, Sec. 102 of the Del.C. of 1953), does not create any punishable offense but is merely a procedural statute; (2) the first count of the indictment fails to contain a plain, concise and definite written statement of the essential facts constituting the offense charged; and, (3) that the first count of the indictment failed to include a statement that the alleged victim of the intended miscarriage was pregnant or thought to be pregnant. The latter question was not pressed upon appeal and will not be considered here.

The lower court in its opinion of July 23, 1954, held that the indictment complied with 5318 of the Revised Code of Delaware, 1935, and with Rule 7(c) of the present Criminal Rules of the Superior Court, stating that the fact that 5296 was erroneously cited did not render the indictment defective where it otherwise clearly and concisely informed the defendant of the nature of the charge against her. In a later opinion, dated August 30, 1954, the lower court refused to consider defendant's motion that the indictment failed to allege that the prosecuting witness was pregnant or believed to be pregnant at the time the abortion was performed, on the ground that under Rule 12(b)(2) of the Criminal Rules of the Superior Court, or by the law of this state prior to that rule, defendant's motion had come too late.

We first advert to the successive steps taken in this case from the finding of the indictment to the trial of defendant. On March 5, 1952, defendant was indicted. On March 17, 1952, she pleaded not guilty to the indictment. On January 22, 1954, the case was tried by the court without a jury.

It will be noted that at no time after the indictment was found on March, 5, 1952, until during the trial on January 22, 1954, was any motion of any kind ever made by the defendant. It would seem that defendant's objection to the indictment was not actually raised until the filing of her motion in arrest of judgment on August 5, 1954, more than two years after the indictment was found.

What is the effect of the fact that in the first count of the indictment an irrelevant statute is designated as the basis of the charge? Defendant was indicted upon two counts. She was convicted upon the first count. In that count it was charged that the defendant 'did then and there procure one Alice B. Quigley to perform an abortion upon one Verna Compton, a female, such abortion not being then and there necessary to preserve the life of the said Verna Compton, contrary to 5296 of the Revised Code of Delaware, 1935, ¹ and against the peace and dignity of the State.' It is provided in this section that any person who 'shall abet, procure, command, or counsel, any other person, or persons,...