[47 Del. 212] Januar D. Bove, Jr., Deputy Atty. Gen., for the State.
Henry A. Wise, Jr., Wilmington, for the defendant.
The defendant, John L. Porter, has been indicted by the Grand Jury of New Castle County with having committed the crimes of (a) larceny, (b) embezzlement by bailee, and (c) false pretenses. The three offenses as charged are alleged to have sprung from the same chain of circumstances, and each offense is pleaded under a separate count in the indictment.
The defendant has filed a motion to quash the indictment. He contends that under our system of criminal pleading, which he asserts to be that of common law, a defendant cannot be charged with more than one offense under a single indictment.
A reading of the indictment clearly indicates that upon the same facts or circumstances the State has indicted Porter in separate counts with having committed the crimes (a) larceny, (b) false pretenses, and (c) embezzlement by bailee. It is to be noted that the joinder involves a felony (larceny) with two misdemeanors (false pretenses and embezzlement by bailee).
The common law rule undoubtedly prohibits a joinder of separate and distinct counts charging different felonies in a single indictment; likewise, separate counts charging a felony and a misdemeanor cannot be joined. On the contrary, separate counts charging only misdemeanors can be joined where they [47 Del. 213] are found to be of the same grade, such as being of the same general nature and carrying similar punishments. 42 C.J.S., Indictments and Informations, § 183.
Various reasons for the common law rule prohibiting the joinder of felonies and misdemeanors have been assigned, such as (a) a conviction for a misdemeanor cannot be had on an indictment for a felony; (b) that the joinder might embarrass the accused in the selection of a jury, and (c) that a person indicted for a misdemeanor is entitled to certain advantages and privileges not accorded to a person indicted for a felony. 42 C.J.S., Indictments and Informations, § 183.
The common law rule in this respect has practically, if not entirely, disappeared, because the reasons for the rule no longer exist, and now in a majority of the jurisdictions a felony and a misdemeanor forming part of the development of the same transaction may be joined in the same indictment. Whart.Chrim.Pl., §§ 285-294; Harman v. Com., 12 Serg. & R. 69; Com. v. McLaughlin, 12 Cush., mass. 612; 10 Am. & Eng.Enc.Law, 599c, State v. Lincoln, 49 N.H. 464; Stevens v. State, 66 Md. 202, 7 A. 254; Staeger v. Com., 103 Pa. 469; State v. Fitzsimon, 18 R.I. 236, 27 A. 446 and Cawley v. State, 37 Ala. 152, wherein Walker, C. J., stated: 'After an elaborate and careful review of the authorities we feel safe in announcing the conclusion that two offenses committed by the same person may be included in the same indictment, where they are of the same general nature, and belong to the same femily of crimes, and where the mode of the trial and the nature of the punishment are also the same.'
Our criminal pleading in this State embodied all of the niceties and technicalities of the common law rules until the enactment in 1925 of Chapter 239, Laws of Delaware. Under this enactment the Legislature abrogated the common law rule regarding heretofore essential language or averments in criminal pleadings relating to indictments, and indicated that an indictment would withstand attack if its language clearly informed the defendant of the nature and cause of action against him. [47 Del. 214] State v. Boyle, 5 Terry 414, 415, 61 A.2d 121. This change simplified our criminal pleading, thus eliminating antiquated form and phraseology seemingly essential theretofore.
The common law rule as previously indicated that a misdemeanor and a felony
The common law rule that persons indicted for misdemeanors were entitled to certain advantages at the trial not afforded to those indicted for a felony, such as an opportunity to make a full defense by counsel to have a copy of the indictment and a special jury, no longer exists in this State. This is so for the reasons that a defendant in any trial whatsoever in this jurisdiction may testify in his own behalf, call witnesses at the expense of the State, if need be, and have every privilege and facility possible for making a full and complete defense, and the higher and more atrocious the crimes, the ...