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State v. Biter

Superior Court of Delaware, Kent County

December 28, 1955

STATE of Delaware
v.
Edward D. BITER and Biter's Auto Service, Inc., a Corporation of the State of Delaware.

Page 895

Defendants were convicted of a conspiracy to defraud, one defendant was convicted of aiding and abetting another to defraud and a third was convicted of setting back speedometer of an automobile for purpose of making a sale. The defendants filed motions for judgment of acquittal and for new trial. The Superior Court, Kent County, Layton, J., held, inter alia, that the evidence was sufficient to sustain all three convictions.

Motions denied.

Page 896

[49 Del. 506] Edward D. Biter and Biter's Auto Service, Inc., were convicted of a conspiracy to defraud. At the same time, Biter was convicted of aiding and abetting one Murphy to defraud, and Biter's Auto Service, Inc., was convicted of setting back the speedometer of an automobile for the purpose of making a sale of said car in violation of 21 Del.C. § 6305. Motions for judgment of acquittal and for a new trial have been filed.

There are two indictments. The first contains four counts. Count No. 1 charges Biter, Murphy[1] and Biter's Auto Service, Inc.,[2] with having conspired to obtain by false pretenses property from one Charles Villa with intent to defraud him by misrepresenting a second-hand car purchased by Villa to be new. Count No. 2 is based upon the same transaction, and charges Murphy alone with obtaining property by false pretenses. Count No. 3 is the same as Count No. 2, except that Biter alone is charged with guilt. Count No. 4, based upon the same facts, charges Biter with aiding, abetting, procuring or counseling Murphy to commit the crime of obtaining money under false pretenses.

The second indictment charges Biter's with having fraudulently changed or set back or caused to be changed or set back the speedometer of the Mercury automobile in question from 800 to 8 miles for the purpose of making a sale of the car.

[49 Del. 505] Herbert L. Cobin, Chief Deputy Atty. Gen., for the State.

Page 897

David B. Coxe, Jr., Wilmington, Del., for defendants.

LAYTON, Judge.

Three reasons are set forth in support of granting one or both motions. The first is that the verdict was the result of prejudice. [49 Del. 507] The second that, since the evidence was entirely circumstantial, and as consistent with defendant's innocence as guilt, the motion for acquittal must be granted. And, finally, the important assignment of error is that there was not sufficient evidence to support a conviction.

As to the first reason, it must be conceded that a great deal of notoriety was attached to the case. However, if defendants thought their positions were prejudiced thereby, they could have petitioned for a change of venue[3] under rule 21(a) of the Criminal Rules of this Court, Del.C.Ann. This was not done. Moreover, at the request of defendants' counsel, I specially charged the jury, in effect, that in view of the notoriety surrounding the case, its duty and responsibility was to disregard completely anything it had read or heard about the affair and decide the facts upon the evidence heard from the witness stand. Under the circumstances, I am not persuaded that defendants' first contention has merit.

Next, there is the point about circumstantial evidence. The difficulty with the argument is that it is not applicable. It is the law of this State that where the evidence is wholly circumstantial, the jury must be fully satisfied not only that the circumstances are consistent with the accused having committed the act but also that the facts shown by such evidence are such as to be inconsistent with any other rational conclusion than that of guilt. Holland v. State, 9 Terry 559, 107 A.2d 920. But the evidence here was not wholly circumstantial.[4] There was direct evidence of a substantial nature, which, if believed, and weighed in connection with other circumstantial evidence, [49 Del. 508] pointed strongly to guilt. Defendants' second contention is dismissed.

Before examining the record at length insofar as it bears on the remaining charges, applicable principles of law should be considered. The bulk of the charges are based upon a conspiracy which, in State v. Cole, ...


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