State v. Schreiber
| Decision Date | 10 May 1933 |
| Citation | 35 Del. 424,166 A. 669 |
| Court | Court of General Sessions of Delaware |
| Parties | STATE v. FRED SCHREIBER |
Court of General Sessions for New Castle County, No. 43, January Term, 1933.
Appeal from the Municipal Court of the city of Wilmington, wherein the defendant was charged with driving an automobile while intoxicated; and case heard on motion of the State to dismiss that appeal.
It appeared that the defendant had pleaded guilty to that charge in the lower court and had been sentenced to pay a fine of $ 100 and costs, and in default of such payment, had, also been sentenced to serve thirty days in the New Castle County Workhouse. He paid the fine and costs, but, nevertheless appealed his case to this court.
The State contended that by paying the fine and costs, the defendant had waived his right of appeal; and its motion to dismiss was based on that ground.
The State's motion to dismiss the appeal is granted.
Percy Warren Green, Deputy Attorney-General, for the State.
H Eugene Savery for the defendant.
OPINION
Article 4 of Section 30 of the Constitution of 1897 gives the General Assembly the right to "grant or deny the privilege of appeal to the Court of General Sessions."
Pursuant to this provision, Section 146, c. 10, Vol. 36, Laws of Delaware, provides:
This provision of the statute is clearly for the benefit of the person convicted and may, therefore, be waived by him.
The defendant voluntarily paid the fine and costs imposed on him by reason of his plea of guilty and has, therefore, waived his right of appeal in this case. State v. Cohen, 45 Nev. 266, 201 P. 1027, 18 A. L. R. 864; Ann. Cas. 1913E, 300, Note; State v. People's Ice Co., 127 Minn. 252, 149 N.W. 286, Ann. Cas. 1916C, 618; 17 C. J. 48, §§ 3326, 3327.
Conceding that there may be some cases that have adopted a contrary rule (Com. v. Fleckner, 167 Mass. 13, 44 N.E. 1053; Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas. 1913E, 296; People v. Marks, 64 Misc. 679, 120 N.Y.S. 1106) they do not represent the weight of authority, or, as...
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