State v. Dennington

• Decision Date: 24 September 1958
• Parties: , 51 Del. 322 STATE of Delaware v. John T. DENNINGTON. STATE of Delaware v. Ernest B. RIDDLE. STATE of Delaware v. Fount BILLINGS, Jr. STATE of Delaware v. Smith SEENEY. STATE of Delaware v. Edward O. JOHNSON. STATE of Delaware v. Ray LANGLEY. STATE of Delaware v. Anna M. CONNER. STATE of Delaware v. Nathan Sipple WOLF. STATE of Delaware v. James Richmond CHADWELL, Jr.
• Court: Delaware Superior Court

Page 80

145 A.2d 80

1 Storey 322, 51 Del. 322

STATE of Delaware v. John T. DENNINGTON.

STATE of Delaware v. Ernest B. RIDDLE.

STATE of Delaware v. Fount BILLINGS, Jr.

STATE of Delaware v. Smith SEENEY.

STATE of Delaware v. Edward O. JOHNSON.

STATE of Delaware v. Ray LANGLEY.

STATE of Delaware v. Anna M. CONNER.

STATE of Delaware v. Nathan Sipple WOLF.

STATE of Delaware v. James Richmond CHADWELL, Jr.

Superior Court of Delaware, Kent County.

Sept. 24, 1958.

Herman C. Brown, Dover, for Dennington, Seeney, Riddle and billings.

George R. Wright, Dover, for Johnson.

Joshua M. Twilley, Dover, for Langley.

Henry J. Ridgely, Dover, for Conner and Wolf.

Jack P. White, Dover, for Chadwell.

Frank O'Donnell, Chief Deputy Atty. Gen., and James B. Messick, Deputy Atty. Gen., for the State.

CAREY, Judge.

Informations against these defendants were filed at various times in the Court of Common Pleas for Kent County. The Attorney General entered a nolle prosequi in those cases, and later presented the same charges to the Grand Jury, which returned true bills of indictment. The offenses charged are misdemeanors over which the Common Pleas Court has concurrent original jurisdiction with the Superior Court. In some instances, but not all, the offenses are also within the original jurisdiction of a Justice of the Peace. In these latter cases, the defendants were first taken before a Justice of the Peace, but elected to be tried in Common Pleas under Title 11 Section 5502 Delaware Code 1953. The record does not disclose the reason for the Attorney General's action.

Defendants have moved to dismiss the indictments upon two basic grounds; (1) lack of jurisdiction in this Court over the cases; (2) deprivation of the right to a speedy trial. Defendants concede that the Superior Court has concurrent original jurisdiction over misdemeanors with the Court of Common Pleas, but argue that, by filing the informations in Common Pleas, the State made its choice or election between the two Courts, which it cannot change without defendants' consent. No question of double jeopardy is raised.

The basic point for decision is whether the State, having brought and later nolle prossed a criminal charge in one Court, may thereafter prosecute the same defendant upon the same charge in another Court of concurrent jurisdiction without consent of the defendant and without disclosing any reason for so doing.

Contrary to the law of some states, it has always been the rule in Delaware (at least since the decision in State v. Morris, 1 Houst.Cr.Cas. 124) that the Court's consent is not necessary to the entry of a nolle prosequi before commencement of trial. Criminal Rule 48(a) as adopted in 1952, Del.C.Ann., was so worded as to suggest a necessity for leave of Court, but that language was altered in 1954 because it was felt that our substantive law did not require such leave and this Court had no right to alter the substantive law under its rule-making powers. In entering the nolle prosequis, therefore, the Attorney General was within his rights, was not obliged to obtain the consent of the Common Pleas Court and was under no duty to disclose his reason for the entry.

Of course, the problem now before this Court is not primarily whether the nolle prosequis were properly entered but rather whether the State can prosecute here after having entered those nolle prosequis without giving any reasons therefor. There are few reported cases dealing with the precise point raised here. The majority of them are adverse to the position taken by the defendants, unless some statute is involved. Illustrations of these decisions are Rodgers v. State, 101 Miss. 847, 58 So. 536; Preston v. State, 109 Tex.Cr.R. 610, 6 S.W.2d 757; State v. Van Ness, 109 Vt. 392, 199 A. 759, 117 A.L.R. 415; State ex rel. Mitchell v. Court of Coffeyville, 123 Kan. 774, 256 P. 804. The cases are collected and discussed in 117 A.L.R. 423.

Perhaps, the strongest case in defendants' favor is State v. Milano, 138 La. 989, 71 So. 131. There it was conceded that the only purpose of the District Attorney was to transfer the case from the first Court, which had taken jurisdiction, to the second Court. The Supreme Court pointed out that there was no provision in the law for the transfer of a criminal action from the one Court to the other and said that the action taken was merely an attempt to accomplish indirectly what could not be done directly. In Delaware, there is likewise no statute for the transfer of a criminal action from the Common Pleas Court of Kent County to the Superior Court. The opinion in the Milano case relies principally upon Coleman v. State, 83 Miss. 290, 35 So. 937, 64 L.R.A. 807, and Ex parte Baldwin, 69 Iowa 502, 29 N.W. 428. A careful reading of the Baldwin case shows that it is in fact authority only for the proposition that, where two Courts in different counties have concurrent jurisdiction over a matter, the one in which suit is first brought will retain its control to the exclusion of the other. We cannot quarrel with that holding but it is hard to understand its significance here, for the entry of the nolle prosequi terminated all proceedings in the Court of Common Pleas. That leaves no question of double jeopardy or of conflict of jurisdiction. State ex rel. Mitchell v. Court of Coffeyville, supra; Rodgers v. State, supra.

In the Coleman case, supra, the decision was expressly based upon a statute dealing with crimes commenced in one County and completed in another. This statute was interpreted as requiring the prosecution to be carried through in the County in which any action was first instituted. Obviously, because of the effect of the statute, the decision was not based upon the common law. Whatever may have been said in that opinion as supporting the view taken by the Louisiana Court in State v. Milano, it is clearly no longer the law of Mississippi, independently of statute. See Rodgers v. State, supra, and Chandler v. State, 140 Miss. 524, 106 So. 265, wherein the Court recognized the rule of the Rodgers case.

Also cited in the Milano opinion are two Kansas decisions, State v. Chinault, 55 Kan. 326, 40 P. 662, and State v. Brannon, 6 Kan.App. 765, 50 P. 986. The law of Kansas, however, as announced in the more recent case of State ex rel. Mitchell v. Court of Coffeyville, supra, is directly opposed to the Milano holding.

Without further discussion of...