Defendant was convicted in Superior Court, Sussex County, of robbery, and he appealed. The Supreme Court, Tunnell, J., held that evidence sustained conviction.
[47 Del. 553] Everett F. Warrington, of Georgetown, for plaintiff in error.
John J. McNeilly, Deputy Atty. Gen., for the State.
SOUTHERLAND, Chief Justice, and WOLCOTT and TUNNELL, Justices, sitting.
On the 21st day of April, 1952, in the Sussex County Superior Court, a jury found Charles William Crawford (hereinafter referred to as ‘ Crawford’ or simply as ‘ defendant’ ), and two codefendants, George Washington Moore and Elwood Willin, respectively, guilty of the crime of robbery as defined by Para. 5176, Revised Code of Delaware, 1935. A motion for a new trial having been made, considered and denied, all three defendants were sentenced to pay fines and serve terms of imprisonment. The defendants had been represented by counsel at the trial, but on the 8th day of July, 1952, the trial court, presumably at Crawford's request, appointed Mr. Warrington to advise and aid him in the matter of an appeal. An appeal was in due course taken, and the matter, having been regularly briefed, came on for argument on January 16, 1953, at a session of this court especially called for the case.
Motion To Dismiss
On the appointed day, the deputy attorney-general, in the course of his oral argument, advised the court that on the 1st day of December 1952, defendant had escaped from the Sussex County Prison and had fled to the State of Maryland, where, having been apprehended, he had resisted in the courts, and was then still resisting, all efforts of the Delaware authorities to have him extradited. Thereupon, this court gave the State an opportunity to file a formal motion to dismiss this appeal, gave both parties an opportunity to file affidavits properly introducing into the record the new situation thus brought informally to the court's attention, and fixed a schedule of briefs relating to the dismissal question.
No formal motion was ever in fact filed in accordance with Rule 19 of this court or with the court's oral direction at [47 Del. 554] the time of argument. Affidavits were sent to the Clerk, however, and briefs were submitted by both parties as if a motion had actually been filed, so we here follow the example of counsel and overlook the procedural irregularity. We pause to state, however, that we are prompted to do so largely because we consider that the entire problem as to the application to dismiss is settled by the defendant's most recent action.
Promptly after the argument, and before the day appointed for the filing of the first brief in support of the motion, the defendant dismissed his then pending Maryland appeal as to extradition. He thereupon surrendered himself to the Delaware authorities, and affidavits show that he was back in the Sussex County Prison on January 19th, three days after the argument in this court. The State, however, still presses for dismissal.
There can be no doubt of the general principle that a fugitive from justice, while he remains a fugitive, has no right to the appellate procedures provided for those who rely upon the orderly course of justice. 2 Am.Jur., p. 988; 24 C.J.S., Criminal Law, § 1668, p. 266. Mr. Chief Justice Waite said, in Smith v. U. S., 94 U.S. 97, 24 L.Ed. 32:
‘ It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. * * * If we affirm the judgment he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.’
If this defendant had remained a fugitive, we should unhesitatingly exercise our discretion to dismiss the instant appeal. But before the question of dismissal vel non could even be taken under advisement, defendant put himself where he must submit to the judgment of the ...