Court of General Sessions of Delaware, New Castle County
[45 Del. 268] The three robbery indictments are identical except that in each indictment the victim is different. The property taken as a result of the robbery consists in each indictment of currency in different amounts.
It will suffice to quote from the indictment in No. 12, January Term, 1950, which may be accepted as typical of the three robbery indictments. This indictment charges that the defendants,
'while engaged in the unlawful act of escape from the New Castle County Workhouse, the said Workhouse then and there being the jail in and for said County, with force and arms, at [45 Del. 269] Christiana Hundred, in the County aforesaid, in and upon one Carl N. Lynch, there being, feloniously did make an assault, and him, the said Carl N. Lynch, in bodily fear, at the Hundred aforesaid, in the County aforesaid, then and there feloniously did put, and certain monies of the aggregate value of Thirty-six Dollars and Twenty-five cents, lawful money of the United States of America, of the moneys, goods and chattels of the said Carl N. Lynch, from the person and against the will of the said Carl N. Lynch, at the Hundred aforesaid, in the County aforesaid, then and there feloniously and violently did seize, take and carry away, * * *.'
The larceny indictment charges that the defendants:
'while engaged in the unlawful act of escape from the New Castle County Workhouse, the said Workhouse then and there being the jail in and for said County, with force and arms, at Christiana Hundred, in the County aforesaid, two 32 caliber Colt automatic guns of the value of Forty Dollars each, five 38/40 caliber Colt revolvers of the value of Thirty-five Dollars each, one 38 caliber Colt special target revolver of the value of Seventy-five Dollars, and one hundred and fifty bullets of the aggregate value of Nine Dollars and Ninety cents, aggregating the total value of Three Hundred thirty-nine Dollars and Ninety cents, lawful money of the United States of America, of the monies, goods and chattels of the Board of Trustees of the New Castle County Workhouse, then and there being found, then and there feloniously did steal, take and carry away, * * *.'
A motion to quash each indictment was filed on behalf of the defendants. The reasons assigned in support of the motions to quash are identical in each case, and are as follows:
1. That the theory of the indictment is indefinite and uncertain and does not fully inform the defendants of the charges made against them.
[45 Del. 270] 2. That the allegations of fact necessary to constitute the crime of larceny are ambiguous.
3. That the indictment is not sufficient in form or substance to plead the judgment in bar of another prosecution for the same offense.
4. That the indictment against Jesse W. Palmer is improper, that it is not the legal name of any of the persons held to answer this indictment, and that the joinder of Jesse W. Palmer with the other defendants herein is an improper joinder of defendants.
5. That the defendants Joseph A. Lankford and Willie N. Edwards are not present within the jurisdiction of the State of Delaware, cannot be tried in their absence, and their joinder as defendants with the other parties hereto is improper.
C. Edward Duffy, Chief Deputy Attorney General, for the State.
Elwood F. Melson, Jr., Robert C. O'Hora and William E. Taylor, Jr., of Wilmington, for the defendant.
At the argument, it was conceded by counsel that the first three reasons assigned in support of the motions to quash the indictments may be summed up in one broad reason, viz., that the language used to describe the offenses which the defendants are charged with having committed does not describe the offenses with sufficient particularity to inform the defendants of the nature of the crimes and of the theory of the State with respect to them.
At common law, an indictment was required to be certain in every particular. Section 5318, Reversed Code, 1935, did away with the technical common law phraseology in indictments but did not eliminate the requirement that the essential elements of the crime of which the accused stands charged shall be set forth with reasonable certainty in the indictment. State v. Morrow, 1 Terry 363, 10 A.2d 530; State v. Caruso, 3 Terry 310, 32 A.2d 771.
I think the indictments before me sufficiently inform [45 Del. 271] the defendants with reasonably certainty of the crimes of which they are charged and the theory of the State in so charging. It is apparent that the theory of the State upon which these indictments are founded is that the defendants joined together with the common purpose and intention of committing an unlawful act, to-wit, the crime of escape, and that while engaged in the performance of that unlawful act, the crimes of robbery and larceny were perpetrated in furtherance of the unlawful act on which the defendants at the time were jointly embarked. Under the State's theory of the crimes, it is not necessary to show which of the defendants performed the acts which constitute the crimes. The State's theory is that it is sufficient to show the commission of the crimes by one or more of the defendants and that as a matter of law, all who were jointly engaged in the doing of the unlawful act are equally guilty of the incidental crimes done in furtherance of the performance of the initial unlawful act.
This theory of the State is set forth in the indictments with reasonable certainty. The motion to quash, therefore, attacks the applicability in the cases at bar of the rule of law upon which the State relies.
The rule seems well settled that all persons who join together with a common intent and purpose to commit an unlawful act which, it itself, makes it not improbable that a crime not specifically agreed upon in advance might be committed, are responsible equally as principals for the commission of such an incidental or consequential crime whenever the second crime is one in furtherance of or in aid to the originally contemplated unlawful act. Wharton's Criminal Law, 12th Ed., Vol. 1, Sec. 258; Commonwealth v. Doris, 287 Pa. 547, 135 A. 313; People v. Sink, 374 Ill. 480, 30 N.E.2d 40; Cyc. Criminal Law, Vol. 1, Sec. 259.
The defendants concede the rule but deny that it has any application to the case at bar. The defendants' argument in this [45 Del. 272] respect
However, in People v. Creeks, 170 Cal. 368, 149 P. 821, the rule was applied to support a conviction of murder which occurred in the course of an escape from prison of two defendants. See also People v. Flannigan, 174 N.Y. 356, 66 N.E. 988. The defendants have not produced any specific authority in support of their argument that the rule has application only when the initial unlawful act to be committed is itself a felony, and on principle I can see no justification for such a distinction to be made.
I conclude, therefore, that the theory of the State upon which the equal and joint guilt of the defendants is premised is sound and will support the indictments provided the robberies and larceny were acts which were designed to further the common purpose of escape from the prison.
In the case of the larceny which resulted in the seizure of guns and ammunition, there can be no doubt but that it was an act designed to further and aid the unlawful act of escape. Similarly, in the case of the robberies, it seems to me that a successful escape would be made more probable by the possession of money by the escapees. In each case of robbery, money was obtained. While the specific acts of robbery might not have been preconceived by the defendants prior to the starting of the unlawful act of escape, nevertheless, the robberies were of aid and assistance in the common purpose.
It seems clear that both the acts of larceny and robbery were committed in furtherance of the common purpose of escaping from the workhouse. Since that is so, and since the act of escape was still continuing, it follows that the rule contended for by the State is applicable and each of the ...