Defendant was convicted of second degree murder. The Superior Court of New Castle County rendered judgment on the verdict, 99 A.2d 501, and defendant appealed. The Supreme Court, Wolcott, J., held that a written statement by defendant to police officers amounted to an admission of facts constituting together an admission of guilt of at least second degree murder and hence was a confession and properly so designated by the trial court in its charge to the jury.
Tunnell, J., dissented.
[48 Del. 428] David B. Coxe, Jr., Wilmington, for appellant.
Stephen E. Hamilton, Jr., Deputy Atty.Gen., Wilmington, for the State.
SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.
The appellant was indicted at the September Term, 1952 in New Castle County for murder in the first degree. She was tried in October of that year and found guilty of murder in the second degree. A motion for a new trial was made which was denied by the Superior Court on October 1, 1953, 99 A.2d 501, and the defendant was sentenced to life imprisonment. From [48 Del. 429] her conviction she now appeals. The reason for the delay of approximately one year between conviction and sentence does not appear.
The appellant in her brief urges the following points as reasons for the reversal of her conviction:
(1) That the Deputy Attorney General in arguing to the jury stated the applicable
principles of law in such fashion as to confuse the jury to the prejudice of the appellant.
(2) That the Court in charging the jury erroneously characterized a certain written statement as a confession and thus prejudiced the appellant in further instructing the jury as to the evidential weight to be given the purported confession.
We will consider the questions raised by the appellant in the order in which we have stated them.
The remarks addressed to the jury by the Deputy Attorney General, of which the appellant complains, were a purported explanation of the difference between express malice required to support a verdict of murder in the first degree, and implied malice required to support a verdict of murder in the second degree. In addition, appellant complains of the prosecutor's statement of the law of self-defense.
Appellant argues that the distinction between express and implied malice made by the Deputy Attorney General was contrary to the law as laid down by this court in Bantum v. State, Del., 85 A.2d 741. For the purpose of disposing of this argument, we will assume, without deciding, that the appellant's view of the prosecutor's remarks is correct.
The confusion in the mind of the jury, if any there was, resulted from statements as to the elements of express malice, and from the prosecutor's attempt to equate those elements to the particular facts of this case. As such, the statements related to the issue of murder in the first degree. The verdict reached by the jury of guilty of murder in the second degree amounts [48 Del. 430] to an acquittal of the appellant of the larger crime. Such acquittal cured any errors relating to the issue of murder in the first degree. Powell v. State, Del., 86 A.2d 371.
The appellant also argues under her first point that the statement of the Deputy Attorney General to the jury purporting to state the law with respect to self-defense was erroneous, and therefore prejudicial. The particular statement under attack was that an assaulted person must rely for help upon others present before using force in his own defense. Assuming that the appellant is correct in her view as to the law of self-defense, it does not follow that this statement of the prosecutor constitutes reversible error. This is so because, not having objected to the statement at the trial, the appellant may not urge the objection upon appeal, and for the further reason that the full and ...