The defendant had been found guilty of the crime of rape and filed motion for relief under Superior Court Rules of Criminal Procedure, rule 35(a) authorizing court to vacate sentence and judgment and grant new trial. The Superior Court held that where all testimony in regard to defendants' contention that statements admitted in evidence were not original statements signed by them but contained the word ‘ moan’ or ‘ moaning’ not in original statements was before jury except information that original statements taken and written by detective had been destroyed by him after they had been retyped, granting of the motion was not justified.
To warrant new trial under rule authorizing court to vacate sentence and judgment, there must be a showing that a retrial could reasonably be expected to result in a different verdict and judgment. Superior Court Rules, Criminal rule 35(a), Del.C.Ann.
Rule 35(a) of the Superior Court Rules of Criminal Procedure, Del.C.Ann., contains the following provisions:
‘ The court may correct an illegal sentence at any time. A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation [49 Del. 351] of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside, or correct the same. Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall cause notice thereof to be served on the Attorney General, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction or that
the sentence imposed was illegal or otherwise subject to collateral attack, or that there was such a denial or infringement of the constitutional rights of the prisoner as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the prisoner or re-sentence him or grant a new trial or correct the sentence as may appear appropriate.’
The motion filed on behalf of the defendants sets forth, that they were found guilty of the crime of rape by a jury at the January Term 1948, of the Court of Oyer and Terminer for New Castle County, and sentenced to be imprisoned for life on March 15, 1948.
It further sets forth that the trial was improperly conducted, was prejudicial and unfair in violation of the Laws and Constitution of the State of Delaware, and in violation of the Fourteenth Amendment of the Constitution of the United States and of certain other constitutional guarantees for the preservation of individual justice, liberty and due process of law; by reason of which the defendants were unjustly deprived of their liberty;
That certain typewritten statements, singed by the defendants, were introduced into evidence by the State, over the objection of the defendants, which materially contributed to their improper conviction;
[49 Del. 352] That said typewritten statements were false and untrue in part and were not voluntarily made, because defendants were induced to sign them without reading them by wilful misrepresentations made by certain police officers;
That the police officers who appeared as witnesses knew that the statements were obtained by misrepresentation, knew that they were false, and that they were introduced into evidence for the purpose of insuring the unjuct and improper conviction of the defendants;
That the police officers who testified at the trial perjured themselves by falsely testifying that the statements introduced into evidence were the only statements taken by the police, when as a matter of fact, they knew that they had prepared two different and distinct sets of statements which had been signed by the defendants;
That the police officers deliberately and in dereliction of their duty, with intent to suppress evidence favorable to the defendants, refused to accept and act on information of eyewitnesses to the alleged crime, evading their duty to ascertain all available evidence which could have been presented to the Grand Jury;
That the Court failed to define the crime of rape in the charge to the jury in the manner required by law.
The motion then alleges that the defendants are not guilty of the crime of which they were convicted, and prays that after notice upon the Attorney General and hearing by the Court, such an order be made as shall seem right and just under the law.
Irving Morris and John M. Bader, Wilmington, for petitioners.
Stephen E. Hamilton, Jr., Deputy Atty. Gen., for the ...