State v. Gitaitis
Decision Date | 08 July 1963 |
Court | Delaware Superior Court |
Parties | , 56 Del. 230 The STATE of Delaware v. Anton GITAITIS. |
Peter Warren Green, Deputy Atty. Gen., Wilmington, for the State.
H. Eugene Savery and Hiram W. Warder, Wilmington, for defendant.
The Grand Jury of this County returned an indictment in the March 1963 Term against defendant, charging him in three counts, viz.:
COUNT I
Anton Gitaitis on the 30th day of January, 1963, in the County of New Castle, did violently assault Joseph Francis Neher with intent to murder the said Joseph Francis Neher.
COUNT II
Anton Gitaitis on the 30th day of January, 1963, in the County of New Castle, did violently assault Earl Houston Coates with intent to murder the said Earl Houston Coates.
COUNT III
Anton Gitaitis on the 30th day of January, 1963, in the County of New Castle, did violently assault Earl Joseph Coates with intent to murder the said Earl Joseph Coates.
Defendant has moved to dismiss the indictment because each of said counts fails to allege any facts which constitute such an assault, and, therefore, the indictment fails to put the defendant on notice as to what he must defend. It also fails to afford him protection against double jeopardy; and it denies him equal protection of the law and due process of law.
Defendant's counsel cites and argues the Federal Constitution (6th Amendment), Article I, § 7, of the Delaware Constitution, Del.C.Ann., our Criminal Rules, and many treatises and cases, but ultimately his arguments can be boiled down to a contention that the failure of the indictment to specify the 'means' which was used by defendant in seeking to effectuate his alleged crimes is fatal.
Defendant's counsel lay great stress on State v. Cook, 6 W.W.Harr. 298, 175 A. 200 (Gen.Sess.Del., 1934), where it was said (6 W.W.Harr. 299, 175 A. 200):
'* * * an indictment must set forth the offense with such certainty as to apprise the defendants of the nature of the accusation upon which they are to be tried and to constitute a bar to any subsequent proceeding for the same offense. * * *'
The Court later said (Id.):
'In considering how far the object or purpose of the conspiracy must be described in the indictment, the rule is that the crime intended to be accomplished by the conspiracy need not be described in the indictment with the accuracy or detail which would be essential in an indictment for the commission of the offense itself, but need only be designated as it is known to the common law or defined by statute. * * *'
Concluding, the Court said no more than:
Just how this case aids defendant is somewhat less than clear; the Court has considered the case and the arguments based on it and holds neither it nor the arguments are apposite to the question here for determination.
Defendant next rests an argument premised on Superior Court Criminal Rule 7(c), which reads:
(Emphasis supplied.)
Defendant argues that the stressed words gives rise to an . The Court does not agree and rejects such argument.
Defendant then argues that this Court's holding in State v. Minnick, 3 Storey 261, 168 A.2d 93 (1960) and what it said in State v. Deedon, Del., 189 A.2d 660, 661-663 (Sup.Ct.1963) as to the requirements of pleading the commission of a crime of breaking and entering a property '[w]ith intent to commit a crime therein'. Title 11 Del.C. § 395, are substantially determinative of the case at bar.
In Minnick and Deedon, the Delaware Courts have advised the Attorney General that indictments under the cited statute must specify what crime those named defendants had in mind or intended to commit when they broke into and entered the properties mentioned in the indictments. That's as far as those cases go; they bear no relationship to the question presented here.
In Deedon, the Attorney General had argued in the Court below and in the Supreme Court against the contention the indictments were insufficient and that the remedy of the defendants in those cases was to seek a Bill of Particulars to ascertain what the intended crime was.
As showing the difference in the questions for determination in Deedon from the one here presented, the Supreme Court said in Deedon, Del., 189 A.2d at 663:
* * *'
At a later point in the same paragraph, now Chief Justice Terry, referring to Rule (f) of our Criminal Rules, which paragraph reads:
said (Id.):
'* * * Such a remedy could be utilized by the defendant to gain information as to the specific means allegedly employed in carrying out his alleged intent, but it may not be used to supply a missing element of the offense in question.'
See also State v. Lasby, Del.Ch., 174 A.2d 323, 324 (Super.Ct.1961).
Defendant has not cited a single case holding that an indictment charging assault with intent to commit murder requires the State to allege the means used in the commission of the crime. The State has only cited two cases--State v. Smith, 41 La.Ann. 791, 6 So. 623 (Sup.Ct.La.1889) and State v. Clayton, 100 Mo. 516, 13 S.W. 819 (Sup.Ct.Mo.1890). Neither of these cases are too convincing in their reasoning.
In Smith, the indictment read:
'That Wesley Smith did willfully, feloniously, and of his malice aforethought, with a dangerous weapon, towit, a gun, assault one Coleman Franklin, with intent then and there to murder.'
The Louisiana Court, however, 6 So. at page 624, made the following comment:
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