State v. Adair

• Decision Date: 11 January 1922
• Citation: 34 Del. 585,156 A. 358
• Court: Court of General Sessions of Delaware
• Parties: STATE v. ROBERT ADAIR

156 A. 358

34 Del. 585

STATE v. ROBERT ADAIR

Court of General Sessions of Delaware, New Castle County

January 11, 1922

Court of General Sessions for New Castle County, January Term 1922.

Indictment for practicing law without license, No. 18, January Term 1922.

Argument on demurrer to indictment. Demurrer sustained.

The grounds of demurrer sufficiently appear in the opinion of the court.

The demurrer is sustained.

Clarence A. Southerland and Aaron Finger, Deputy Attorneys-General for the State.

The defendant appeared for himself.

PENNEWILL C. J., and RICHARDS, J., sitting.

OPINION

PENNEWILL, C. J.

The defendant has been indicted for unlawfully engaging in the business of practicing the profession of law without first having obtained a proper license therefor.

The statute upon which the indictment is based provides that no person, without first having obtained a proper license therefor, shall engage in the business of practicing the profession of law. The indictment may be said to charge an offense in the language of a particular section of the statute. Section 217, Rev. Code 1915.

Section 221 defines a lawyer to be a

"person whose business it is for fee or reward to prosecute or defend causes in any court of record or other judicial tribunal of the United States or of any of the States, or give advice in relation to causes or matters therein pending. * * *"

The defendant has demurred to the indictment, mainly on the ground that it does not charge an offense within the meaning of the act, his contention being that engaging in the practice of the law is not unlawful unless it is done for fee or reward.

We think there is no doubt that in order to convict the defendant, the State would have to prove that he did engage in the practice of his profession for fee or reward, and we do not understand this to be denied by the State. If it is such an essential element of the offense that it must be proved at the trial, must it not be averred in the indictment? In other words, if the statutory offense is not complete unless the person charged practiced law for fee or reward, does the indictment charge an offense under the law?

One of the rules of criminal pleading is that the indictment must set out an offense; and another is that the indictment shall sufficiently inform the defendant of the offense he is required to meet. Another rule, with some qualification, is, that it is sufficient to charge the offense in the language of the statute.

We think the practice of the law for fee or reward is an essential part of the statutory offense,...