State v. Warwick

• Decision Date: 27 July 1954
• Citation: 108 A.2d 85,48 Del. 568,9 Terry 568
• Court: Delaware Superior Court
• Parties: , 48 Del. 568 STATE of Delaware v. William J. WARWICK.

Page 85

108 A.2d 85

9 Terry 568, 48 Del. 568

STATE of Delaware v. William J. WARWICK.

Superior Court of Delaware, New Castle County.

July 27, 1954.

Edmund N. Carpenter, 2nd, Dep. Atty. Gen., for the State.

James R. Morford, Morford, Bennethum & Marvel, Harold Green and Samuel Handloff, Wilmington, for defendant.

TERRY, Judge.

The Grand Jury of New Castle County during the January Term of the Superior Court, 1954, found and returned four criminal indictments against William J. Warwick.

The indictments in pertinent part are as follows:

(1) No. 91, January Term, 1954: Embezzlement or conversion by bailee in violation of Title 11, Section 636, of the Delaware Code of 1953. The alleged particulars are that Warwick on the 6th day of April, 1953, in New Castle County, being bailee of a check to the value of $39.25, embezzled (fraudulently converted) the same to his own use.

(2) No. 92, January Term, 1954: Embezzlement or conversion by bailee in violation of Title 11, Section 636 of the Delaware Code of 1953. The particulars alleged are that Warwick on the 14th day of August, 1953, in New Castle County, being bailee of a check to the value of $80.00, embezzled (fraudulently converted) the same to his own use.

(3) No. 93, January Term, 1954: First Count: Embezzlement or conversion by bailee in violation of Title 11, Section 635, of the Delaware Code of 1953. The particulars alleged are that Warwick on the 27th day of July, 1953, in New Castle County, being bailee of a check payable to William J. Warwick, Prothonotary, New Castle County, to the total value of $1002.46, the property of New Castle County, State of Delaware, embezzled (fraudulently converted) the same to his own use.

Second Count: Embezzlement or conversion by a clerk to a body corporate in violation of Title 11, Section 638 of the Delaware Code of 1953. The alleged particulars are that Warwick on the 27th day of July, 1953, in New Castle County, being bailee of a check payable to William J. Warwick, Prothonotary of New Castle County, to the total value of $1002.46, the property of New Castle County, State of Delaware, embezzled (fraudulently converted) the same to his own use.

(4) No. 94, January Term, 1954: Embezzlement or conversion by bailee in violation of Title 11, Section 636 of the Delaware Code of 1953. The particulars alleged are that Warwick on the 12th day of June, 1953, in New Castle County, being bailee of a check to the value of $50.00, embezzled (fraudulently converted) the same to his own use.

Upon the defendant's motion the State filed a further bill of particulars in relation to Indictments Nos. 91, 92, the first count of 93, and 94. The particulars recite 'the name of the entity for whom the defendant was, on the dates charged in the indictments, a 'bailee' of the checks therein mentioned, is New Castle County.'

Likewise, the State filed a further bill of particulars in relation to the second count of Indictment No. 93. The particulars recite:

(1) 'The name and corporate entity of the 'body corporate' of which the defendant was a 'clerk' as charged in this count of the indictment, is New Castle County.'

(2) 'Defendant's status as 'clerk' is further defined as Prothonotary of the Superior Court of New Castle County, as described in Article 4, Section 26 of the Constitution of the State of Delaware.'

(3) 'The name of the entity for whom the defendant was, on the date charged in the indictment, a 'bailee' of the check therein mentioned, is New Castle County.'

The pertinent constitutional provision, statutes and Rule of the Superior Court are as follows: Delaware Code of 1953----

Title 11:' § 635. Embezzlement or conversion by bailee of property valued at $100 or more

'Whoever, being a bailee of money or other property which may be the subject of larceny, to the value of $100 or more, embezzles or fraudulently converts the same to his own use, shall be fined in such amount or imprisoned for such term, or both, as the court, in its discretion, may determine.'

Title 11: ' § 636. Embezzlement or conversion by bailee of property valued at less than $100 * * *

'(a) Whoever, being a bailee of money or other property which may be the subject of larceny, to the value of less than $100, embezzles or fraudulently converts the same to his own use, shall be fined not more than $100 or imprisoned not more than one year, or both.'

Title 11: ' § 638. Embezzlement by cashier, servant or clerk; allegation of indictment; proof

'(a) Whoever, being a cashier, servant, or clerk to any person or body corporate, or employed for the purpose, or in the capacity of a cashier, servant, agent or clerk, by any person or body corporate, embezzles, fraudulently abstracts or misapplies any money, goods, bill, note, bond, check, evidence of debt, or other valuable security or effects, which, or any part whereof, shall be delivered to, or received, or taken into possession by him, or to which he has access for, or in the name, or on account of his master or employer, although such money, goods, bill, note, bond, check, evidence of debt, or other valuable security or effects was not received into the possession of such master or employer, otherwise than by actual possession of his cashier, servant, agent, clerk or other person so employed, is guilty of a felony, and shall be whipped with not more than 20 lashes and imprisoned not more than 10 years.'

Art. 1, § 7, of The Constitution of The State of Delaware, Del.C.Ann.

'Section 7. In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel, to be plainly and fully informed of the nature and cause of the accusation against him, * * *.'

Rule 7(c) of the Criminal Rules of The Superior Court, Del.C.Ann.

'(c) Nature and Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the Attorney General. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.'

The defendant has moved for a dismissal of each of the indictments. My consideration of the defendant's motions will be directed to Indictment No. 93, for in this indictment will be found the substantive questions raised under the defendant's motions to dismiss.

The defendant's motion to dismiss count 2 will be considered first.

The first paragraph under count 2 charges the defendant with having committed a felony. The second paragraph recites the felony to be embezzlement or conversion by a clerk to a body corporate in violation of Title 11, Section 638 of the Delaware Code of 1953. The third paragraph particularizes the alleged felony of embezzlement or conversion by a clerk to a body corporate as indicated in Paragraphs 1 and 2 as follows:

'William J. Warwick on the 27th day of July, 1953 in New Castle County, being bailee of a check payable to William J. Warwick, Proy., New Castle County, to the total value of $1200.46 the property of New Castle County, State of Delaware, embezzled (fraudulently converted) the same to his own use.'

This count must be considered in the light of the admissions by the State as contained in its further bill of particulars; that is, (1) 'the name of the corporate entity of the body corporate of which the defendant was a clerk as charged is New Castle County'; (2) 'Defendant's status as a clerk is further defined as Prothonotary of the Superior Court of New Castle County as described in Article 4, Section 26 of the Constitution of this State.'

The reasons assigned by the defendant for the dismissal of this count are as follows:

(1) That New Castle County is not a body corporate.

(2) The defendant as duly elected Prothonotary is not a clerk to New Castle County.

(3) That the count considered as a whole violated both Rule 7(c) of the Rules of Criminal Procedure of this Court and Article 1, Section 7 of the Constitution of this State.

(4) That the count charges embezzlement and conversion in the disjunctive.

(5) That if the count be construed as alleged, embezzlement by bailee, it fails to state the official and customary citation of the statute applicable to that crime in accordance with the provisions of Rule 7(c) of this Court.

(6) That if the count be construed as charged, embezzlement by bailee under Title 11, Delaware Code, Section 635, it cannot be sustained because (a) it does not disclose the legal relationship of bailor and bailee as between New Castle County and the defendant, and (b), New Castle County is not in law the bailor of a check payable to William J....