Smokes v. City of Wilmington
| Decision Date | 30 September 1971 |
| Citation | 282 A.2d 634 |
| Parties | Jessie SMOKES a/k/a James Smokes v. The CITY OF WILMINGTON. |
| Court | Delaware Superior Court |
Jessie Smokes was convicted in Municipal Court of being concerned in interest in lottery policy writing. By certiorari to this Court he seeks to have the conviction set aside because the criminal proceedings against the accused were instituted in Municipal Court by an unsigned paper purporting to be an information.
The City concedes that proceedings in Municipal Court must be by information (11 Del.C. § 5701) and that Superior Court Criminal Rule 7(c), Del.C.Ann., which is modeled after the corresponding federal rule, requires informations be signed by the Attorney General. It contends, however, that the defect was a mere defect in form which was waived when not objected to by defendant before trial.
The difficulty with the City's contention is that a piece of paper containing a criminal charge but no validating signature is not an information.
An information is defined in Ballantines Law Dictionary (1948 Edition) as, 'a written accusation of crime preferred by a public prosecuting officer without the intervention of a grand jury'.
Any person can type a criminal charge on a printed form but only an Attorney General or his Deputy can turn the paper into an information and then only by signing it.
Under Delaware practice the preparation and promulgation of an official information as evidenced by the required signature is an indispensible step in any criminal proceeding where prosecution by information is required by statute. Such step is a separate step from the actual trial and prosecution of the accused in the court. This initial step cannot be taken without the professional attention of the Attorney General or his Deputy. Thus is the public protected from charges which have no legal basis and charges not supported by admissible evidence.
The City cites Orfield Criminal Procedure Under Federal Rules, Vol. 1, Sec. 7:37, p. 601, and the cases cited therein, for the proposition that the lack of signature is not a fatal defect. However, both the cited text and the federal cases therein referred to make it clear that the informations held valid in spite of a defect as to signatures were in fact personally signed by a prosecuting attorney with some color of authority. The cases merely...
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Blakeney v. Commissioner of Correction
...to verify arresting officer's signature as required by statute deprived court of subject matter jurisdiction), and Smokes v. Wilmington, 282 A.2d 634 (Del.Super.1971) (attorney general's failure to sign information as required by statute was jurisdictional defect requiring reversal of convi......
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Eberly v. Eberly
...321 A.2d 123, 125 (1974); Unit, Inc. v. Kentucky Fried Chicken Corp., Del.Super., 304 A.2d 320, 331-332 (1973); Smokes v. City of Wilmington, Del.Super., 282 A.2d 634 (1971); Harris v. State, Del.Super., 82 A.2d 387, 388 (1951); State v. Norris, Del. Gen. Sess., 73 A.2d 790, 793 (1950); Del......
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State v. Korotki
...notice of appeal from a lower court, and that such a lack of timeliness constitutes a jurisdictional defect under Smokes v. City of Wilmington, Del.Super., 282 A.2d 634 (1971), mandating dismissal of all charges. Rule 37.1(b) Appeals de novo. In an action where the appeal is de novo, the At......
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Wing v. State, 1
...before the Superior Court may proceed by information signed by the attorney general, as it did in Wing's case. Smokes v. City of Wilmington, Del.Super., 282 A.2d 634 (1971). Consequently, we find no merit to Wing's first Ineffective Assistance of Counsel Wing next contends that he received ......