Ernest S. Wilson, Jr., of Morford & Bennethum, Wilmington, and Hayden C. Covington, Brooklyn, N. Y., for plaintiffs in error.
Wilfred J. Smith, Jr., Deputy Atty. Gen., for respondent.
By their allegations of diminution, plaintiffs seek to have this Court direct the Court below to incorporate in its record and return the transcript of evidence taken at the trial. Although in this State the Courts of Common Pleas have no official reporter, it appears that the evidence in these cases was taken at the request of the plaintiffs by a qualified reporter, who supplied a transcript to the trial Judge. Plaintiffs contend that the Court below misconstrued a criminal statute in such way as to render it unconstitutional; that plaintiffs were prejudiced thereby; that the present record fails to disclose this error, which can only be discovered through an examination of the evidence. Plaintiffs further point out that the sentence imposed in each [49 Del. 550] case was a fine of $5, wherefore they have no right of appeal; they contend that certiorari is the only available remedy, but that this remedy would be meaningless in these cases unless the evidence is sent up.
The short answer to plaintiffs' contentions is that the Supreme Court of this State has held that the evidence is not part of the record in certiorari proceedings. Thompson v. Thompson, 3 W.W.Harr. 593, 600,140 A. 697. Clearly, it would be a futile act to compel the transcript of evidence to be sent up when we could not examine it for alleged error after we received it.
Two cases have been cited as supporting the proposition that the stenographic record of testimony is a part of the record in certiorari. Neither of them so holds. Douglass v. Reynolds, Byrne & Co., 7 Pet. 113,32 U.S. 113, 8 L.Ed. 626 was before the Supreme Court on a writ of error. Mayor, Aldermen and Inhabitants of New Orleans v. U.S. 5 Pet. 449,30 U.S. 449, 8 L.Ed. 187, was an appeal in a chancery ...