State v. Clark
| Decision Date | 09 October 1970 |
| Citation | 270 A.2d 371 |
| Parties | The STATE of Delaware, Plaintiff Below, Appellant, v. Sidney J. CLARK, Defendant Below, Appellee. |
| Court | Supreme Court of Delaware |
Francis A. Reardon, State Prosecutor, Wilmington, for plaintiff below, appellant.
James M. Tunnell, Jr., and Paul P. Welsh of Morris, Nichols, Arsht & Tunnell, Wilmington, for defendant below, appellee.
In this embezzlement case, the Superior Court made a pre-trial ruling that the present embezzlement statute, being 11 Del.C. § 635, 1 is unconstitutional for vagueness; but that its predecessor § 635 2 stands unrepealed and the indictment in this case states an offense thereunder. Accordingly, the Superior Court denied the defendant's motion to quash the indictment.
At that stage, the State was granted leave to file an appeal under the provisions of subparagraph (2) of the recently enacted 57 Del.L.Ch. 133. 3
The defendant has moved to dismiss the appeal on the ground that it seeks review of an unappealable interlocutory order. We agree.
Subparagraph 2 is ambiguous; but when read in toto, and in the light of subparagraph 1, the conclusion is impelled that it provides for appeal by the State from a certain type of interlocutory order only: an 'order suppressing or excluding substantial and material evidence.' Only in the case of the reversal of such an order is the decision of this Court binding upon the defendant; for otherwise, as the Act states, 'in no event shall the decision or the result of the appeal affect the rights of the defendant and he shall not be obligated to defend the appeal.'
The order in this case is an interlocutory order; and it is not of the evidentiary type in the appeal of which the decision of this Court would affect the rights of the defendant. It follows that any decision of this Court in this appeal would not be binding upon the defendant in this case. We hold, therefore, that the order below is not appealable by the State at this stage of this case; and that further proceedings in the Superior Court in this case should not be delayed by further proceedings in this Court on this appeal.
This construction of subparagraph 2 is consistent with the views we expressed in Hodsdon v. Superior Court, Del.Supr., 239 A.2d 222 (1968). There the defendant in a criminal case sought review by this Court of an adverse pre-trial ruling on the constitutionality of the statute under which he had been indicted. This Court there refused to review the interlocutory order and thus to 'fragment' the case, stating:
* * *.'
Fragmentation of criminal cases is against public policy, we think, whether by action of the defendant or of the State.
This is not to say that the purpose of subparagraph 2 is unduly truncated. The primary purpose of that portion of this Act, as we understand it, is to afford to the State the opportunity to have reviewed by this Court adverse rulings of law made by lower courts--not for the purpose of having an appellate decision in the specific case in which the question arose, but for the purpose of having the question finally decided for future cases--all with due regard for the double jeopardy guaranty. That purpose is not frustrated by our construction of subparagraph 2. After the entry of final judgment below in the instant case, the State may again seek to bring up the question of the constitutionality of the present 11 Del.C. § 635 for future reference.
The appeal is dismissed.
1 The present 11 Del.C. § 635 provides:
'Whoever embezzles money or other property which may be the subject of...
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...this interlocutory order, but the Delaware Supreme Court held itself without jurisdiction to decide the point at that stage. State v. Clark, Del.1970, 270 A.2d 371. The Court suggested that the state appeal the questioned ruling, if necessary, when the proceedings below were Following Clark......
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