State v. Moore
| Decision Date | 30 October 1899 |
| Citation | 18 Del. 299,46 A. 669 |
| Court | Court of General Sessions of Delaware |
| Parties | STATE v. THOMAS C. MOORE |
Court of General Sessions, Kent County, October Term, 1999.
INFORMATION filed for violating the provision of Section 7 of Article 5 of the Constitution by influencing certain persons to register as qualified voters, (No. 1 April Term, 1899).
The information filed by the Attorney-General was demurred to on several grounds. The Attorney-General thereupon asked leave to file the following amendments to the information:
"And now to wit, this thirtieth day of October, A. D. 1899, comes Robert C. White, Attorney-General of the State of Delaware and prays leave of the Court to file the following amendments, to wit, by adding to the first paragraph of the first count in said information the following words and names, to wit, Elijah M. Gregory, John Seeney and John Wilmer, and by adding to second and third counts in said information, and before the commencement of said counts, the words following, to wit: And the said Robert C. White Attorney General as aforesaid now here in the Court of General Sessions of the said State, now sitting in the County aforesaid, further information makes that the said Thomas C Moore late of Duck Creek Hundred in the county and State aforesaid was on the eighteenth day of April, A. D. 1899 held in bail by Ezekiel V. Cooper, Esquire, a Justice of the Peace of the said State in and for the county aforesaid in the sum of one thousand dollars for the appearance of the said Thomas C. Moore, at the next term of the Court of General Sessions in and for said county, to answer the charge of using money to influence certain persons to register as qualified voters in Representative District, No. 1, in Kent County aforesaid, to wit: Elijah M. Gregory, John Seeney and John Wilmer."
Mr. White:--The effect of this amendment is simply the addition of the names, Elijah M. Gregory, John Seeney and John Wilmer. The information charges the defendant, in the first paragraph, with influencing certain persons, without naming those persons.
They are not set out in the information?
Mr. White:--We do name them in the counts, but not in the first paragraph of the information. In each count we do state that these certain persons were influenced, naming them.
Mr. Hayes:--This is a case of first impression in this State, as to amending this information--in the case of State vs. Collins, 1 Pennewill, 420, there was no question raised as to the proceedings.
The only difference between an information and an indictment is that one is found by a grand jury and the other is presented by the Attorney-General. We object to any amendment being made to the existing information. As to filing a new information, that is something else. We are not discussing that question at this time; and if an amendment is allowed, we think it should be allowed on certain terms.
Mr. Cooper, Deputy Attorney-General:--This information is filed under the provisions of Section 8, Article 5, of the amended Constitution; Section 7, of of Article 5, enumerating a number of offenses for a violation of the election laws, and Section 8, of Article 5, providing the mode in which persons charged with the commission of the offenses enumerated in Section 7, shall be tried.
Count number 2 sets out the offense without reciting, as it does in count number 1, that the defendant had been held to bail by a Judge or a Justice of the Peace. The amendment which is offered in no manner changes the substance of the indictment; it only alleges certain matter which gives the Court jurisdiction, in the subsequent counts of the information.
I take it that unless the defendant had been held to bail by a Judge or a Justice of the Peace, the Attorney-General would not have the power to file the information, and it would be beyond the jurisdiction of the Court to try it until he was so held.
So that the effect of the amendment goes to the jurisdiction of the Court, to show that the defendant has been held to bail by a Judge or a Justice of the Peace, which was set out in the first count, but not set out in the subsequent counts.
It is true that an indictment ordinarily cannot be amended as to a matter of substance, because an indictment is the finding of a grand jury. It is the finding of the peers of the accused, and it is their finding upon which he is tried. The grand jury is discharged, and if their work is imperfect, of course it cannot be corrected either by the Court or by the Attorney-General.
But an information is filed by the officer representing the government, or as some of the old cases say, "filed by the king"--the government being the party on the one side and the defendant on the other; that the government (as in this case the Attorney-General) may amend its pleadings at any time as a matter of right and not a matter of discretion of the Court.
I find in the states of Kentucky, Vermont, Connecticut, Colorada and Michigan there are informations for certain offenses,--I think all being misdemeanors as this is. Those states have now laid down a uniform line of procedure, and I could not find any case where any of these states using informations had refused to permit an amendment. I do find, however, where some of the states that permit a prosecution for a crime by information, allow amendments.
State vs. Wright, 24 Atl., (Vt.) 250; King vs. Wilks, 4 Burrows, 2568.
I have been unable to find any case in which an amendment to an information at common law has not been allowed.
Are we to understand, Mr. Hayes and Mr. Ward, that your position is that an amendment could not be granted; or that if granted, it must be upon terms?
Mr. Ward:--We take both positions.
Mr. Cooper:--Now upon the matter of terms. This is the information of the government; not an information in a civil proceeding in which the Court ought to impose terms. As was said by Justice Mansfield in the case which I cited, the Attorney-General pays no costs, and therefore there can be no imposing of terms so far as costs are concerned.
Mr. Ward:--First, the Court understand that so far as the common law and the practice of this State are concerned, the matter of an amendment by substance could not be considered, because under the practice an amendment in criminal pleading has never been allowed in this State, except in matters of form and not of substance.
Second. We have a provision in our Constitution, the one under which these informations are filed, which infringes most strongly upon the common law rights of a defendant.
In this provision of the Constitution is laid down a certain method and process for prosecuting certain crimes, and what the Constitution expresses is the chart for this Court; anything not expressed cannot be a guide to this Court.
I would say generally about the authorities cited by the learned counsel on the other side, that so far as shown in any of the cases cited, where the amendment was allowed, it was as to matters of form and not of substance.
Mr. Cooper:--Lord Mansfield said they could add whole counts.
Mr. Ward:--Lord Mansfield said if the amendment had not been allowed the defendant would have been acquitted. We all know that under the extreme application of technical rules in criminal, as well as civil proceedings in those old days, it took a very little thing in the record, even where it was a matter of form, to acquit a person.
Some of the amendments referred to by Justice Mansfield were like this: He allowed an amendment in an information from the words "tenor, etc," to the words "purport, etc," which must be, it seems to me, purely and simply a matter of form and not of substance. The learned counsel on the other side cite but one American authority, and that was a case where an amendment was permitted in the averment of time, to bring it within the statute of limitations. In that case there is nothing to show that the amendment that was allowed was a material amendment.
In one breath the prosecuting officer says this is not a material amendment, and before he completes his period he says that without it he has not shown the jurisdiction of this Court.
Judge Rowell, in the Vermont case argues from that provision of the statute law of Vermont permitting amendments in indictments, and not referring to informations, that he could not exclude the common law in amending informations. I contend that that averment is not applicable to this. There was a reference by that Judge to that provision in criminal prosecutions only; and it was in a statute; here there is a reference to a provision in the Constitution giving certain powers to amend, and I contend that by clear and plain arguments the power to amend in one, by giving power to amend in the other, is excluded.
Our Constitution is based upon our own institutions; it is based upon what we have considered in the past to be proper. If the makers of this Constitution have in their own minds decided that there should be permitted amendments in criminal pleadings, the Constitution should have so stated.
It expressly says that amendments may be made in civil actions, and gives no power to amend in criminal actions because the makers of our Constitution chose to give the power to amend in civil proceedings and limited it to that, then we have a clear conclusion necessarily drawn from that fact that the makers of this Constitution determined that amendments in criminal proceedings ought not to be allowed, and they did not authorize it. It is the application of the old rule, that the expression of the one excludes the other.
Section 28, p. 981, of the Revised Code, which is a general provision concerning crimes and punishments, provides: "In a...
To continue reading
Request your trial
-
Godwin v. State
... ... holding to bail, allegations of an examination and holding to ... bail, if in the information, need not be proven because they ... are no part of the description of the offense charged. It was ... clearly and rightly decided by the Court in State vs ... Moore, 18 Del. 299, 2 Penne. 299, 46 A. 669, ... all the Judges who sat in the cause concurring, that such ... allegations need not be averred, but that the absence of such ... an examination and commitment or holding to bail were matters ... of defense to be set up by a plea ... The ... ...