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State v. Norris

Court of General Sessions of Delaware, New Castle County

April 21, 1950

NORRIS et al.

Page 791

[45 Del. 334] C. Edward Duffy, Chief, Deputy Attorney General, for the state.

Elwood F. Melson, Jr., Robert C. O'Hora and William E. Taylor, Jr., all of Wilmington, for the defendants.


The defendants are charged jointly on three indictments for robbery and one indictment for larceny. At the January term, the defendants were indicted on the same charges, and a motion to quash each indictment was filed on their behalf. These motions were denied in part and granted in prt in State v. Norris, et al., Del., 71 A.2d 755. The prior indictments having been quashed as to one of the defendants on the ground of misnomer, the State reindicted the defendants at the March term.

To each of the present indictments, the defendants filed a special plea in bar which sets out that at the January term, 1950, each of the defendants was indicted separately and convicted of the crime of escape from the New Castle County Workhouse. The prior convictions of escape are now sought to be established as a bar to the prosecutions of the robberies and larceny. The State has moved to dismiss the special pleas in bar.

The present indictments charge that the defendants joined together for the purpose of committing an unlawful act, to-wit, the act of escape from aprison to which they had been lawfully [45 Del. 335] committed, and that while engaged in the performance of that unlawful act, the robberies and the larceny were committed. The State's theory of the indictments is that, since the robberies and larceny were committed in furtherance of and in aid to the originally contemplated unlawful act, all of the defendants are equally guilty as principals. The theory of the State was upheld in the disposal of the motions to quash the prior indictments at the January term.

The argument made on behalf of the defendants in support of their pleas of

Page 792

The prohibition against putting a person twice in jeopardy is found in Article I, Section 8 of the Constitution of Delaware which provides in part that 'no person shall be for the same offense twice put in jeopardy of life or limb, * * *.'

At common law, the plea of double jeopardy was designed to prevent an offender from twice being tried upon the same indictment, and became applicable only when the same evidence was required to prove the first and second indictments. Rex v. Vandercomb & Abbott, 2 Leach 708, 168 Eng. Reprint 455. This common law rule was made the subject of specific provisions in most of the constitutions of the states of this country, and in applying the constitutional guarantee the courts initially applied the strict common law rule which required that the same evidence be essential to support both the first and second indictments. Commonwealth[45 Del. 336] v. Clair, 7 Allen 525, 89 Mass. 525; Wilson v. State, 24 Conn. 57; and see 57 Yale Law Journal 132.

In course of time, however, the common law rule was modified to the extent of permitting the plea of double jeopardy to a second indictment when the offense charged in the second indictment is a necessary element of the prior indictment. 15 Am.Jur.Criminal Law, § 385.

This modification of the strict common law doctrine is the rule in Delaware as the result of two decisions of our courts. In State v. Townsend, 2 Har. 543, the defendants had been formerly indicted and convicted for a riot and were subsequently indicted for disturbing a religious meeting. The two indictments arose out of the same act, the riot having occurred in the meeting house in question and during worship. The plea of autrefois convict was allowed and the defendants were discharged from the second indictment. In the course of its opinion, the court stated that the plea was valid if the second crime was the same in fact for which the defendants were before convicted, or was necessarily included in the former crime for which they had been convicted.

In State v. Day, 5 Pennewill 101, 58 A. 946, the defendant was indicted for pointing a pistol, and filed a plea in bar setting forth a conviction before a Justice of the Peace for assault and battery. The court charged the jury that if the pointing of the pistol was necessarily included in the assault of which the defendant had formerly been convicted, then the plea was good and the defendant should be acquitted.

The defendants in the case at bar argue that the modification of the strict common law rule is applicable even though the first indictment is for a lesser offense than the second indictment provided the second indictment is for an offense which necessarily includes as an indispensable element the first and lesser offense. [45 Del. 337] There is substantial authority to support this argument. Many of the cases are collected in a footnote to 15 Am.Jur.Criminal ...

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