[53 Del. 262] Januar D. Bove, Jr., Atty. Gen., and Max S. Bell, Jr., Deputy Atty. Gen., for the State.
[53 Del. 263] John Biggs, III, and John Merwin Bader, Wilmington, for defendants Gilbert Minnick, Mildred Minnick, Melvin Downing and Raymond Emory.
David B. Coxe, Jr., Wilmington, for defendant William V. Charlton.
Anthony F. Emory, Wilmington, for defendant Albert L. Reverdito.
Donald W. Booker, Wilmington, for defendants Francis L. Conley and Ronald H. Therkildsen.
The four indictments in this case were returned by the New Castle County Grand Jury as the result of various depredations against the house and property of George and Lucille Rayfield in Collins Park, New Castle County, Delaware.
At the conclusion of an investigation, the State Police arrested the various defendants and took them before a magistrate, where they were charged and subsequently released on bond. Thereafter, the same defendants were subpoenaed to appear before the Grand Jury which was then investigating the Collins Park incidents. The Grand Jury interrogated the defendants and various other witnesses on September 22 and 23, 1959. The subject indictments were returned on September 23rd. At present, the sole question before this Court is the validity of these indictments.
Six questions have been raised by the various motions to quash. One question, raised by Mr. Biggs and Mr. Bader, relative to charging different individuals with different crimes within one indictment, has apparently been abandoned. Another question, raised by every defense attorney except Mr. Booker, was certified to our Supreme Court. That question was concerned with whether the Grand Jury was a legally [53 Del. 264] constituted body at the time it returned the subject indictments.
The following three questions of law were certified for hearing and determination:
'1. Of how many members did the Grand Jury for New Castle County consist on September 22 and September 23, 1959?
'2. If the Grand Jury for New Castle County on September 22 and September 23, 1959, consisted of other than fifteen members, were the indictments returned against the defendants in the within matters valid?
'3. Can a New Castle County Grand Jury validly operate under any circumstances with less than fifteen members in attendance?'
After hearing and determination, the Supreme Court interpreted the said three questions as follows:
'1. Interpreting the first certified question as raising the question of the legal effect of the excuse by the trial court of one of the Grand Jurors prior to September 22, 1959, the answer to the question is: Fourteen.
'2. Interpreting the second certified question as raising the question whether the indictments referred to were
invalidated by reason of the reduction of the Grand Jury, the answer is: The indictments were not for that reason invalid.
'3. Interpreting the third certified question as raising the question whether fifteen Grand Jurors must always be in attendance to validate the proceedings of the New Castle County Grand Jury, the answer is: The Grand Jury can validly operate in certain circumstances with fewer than fifteen members in attendance.'
The opinion of the Supreme Court, 164 A.2d 173, is to be filed at a later date.
[53 Del. 265] Thus, only four questions remain to be adjudicated at this time.
I. Mr. Biggs and Mr. Bader, in their briefs for defendants Gilbert Minnick, Mildred Minnick, Melvin Downing and Raymond Emory, advance the contention that the third degree burglary indictments  are inadequate and must be quashed, because they fail to specify the particular crime which was intended to be committed once the breaking and entry had been effected. The question becomes: Is the intent aspect of a burglary indictment properly averred by charging as '* * * intent to commit a crime therein', or must the particular crime be specified?
The statutory definition of third degree burglary, 11 Del.C. § 394, is as follows:
'Whoever breaks and enters the dwelling house of another, under circumstances not amounting to burglary in the first or second degree, with intent to commit any crime therein, whether such intent be executed or not, is guilty of burglary in the third degree and a felony, and shall be imprisoned not more than 15 years.' (Emphasis added.)
[53 Del. 266] It is obvious that the indictment counts in question, insofar as the language now pertinent is concerned, were drafted in close reliance upon the above emphasized statutory language, with the sole exception being that the general phrase 'any crime' was changed to the somewhat more limited phrase 'a crime'. At this time, it seems appropriate to review some of the general principles of drafting code indictments under the new rules.
'Under Rule 7(c), [Del.C.Ann.] an indictment * * * must be a plain, concise and definite written statement of the essential facts constituting the offense charged. The indictment * * * is sufficient if it clearly informs the defendant of the precise offense with which he is charged so that he may prepare his defense and so that a judgment thereon will safeguard him from a subsequent prosecution for the same offense. Every ingredient or essential element of the offense should be alleged.
* * *
* * *
'It is not essential that the offense be charged in the language of the statute * * *. An indictment * * *
for a statutory offense however, may ordinarily be laid in the language of the statute, unless the statute omits an essential element of the offense or includes it only by implication, in which case the indictment should allege it directly and with certainty. * * *
* * *
* * *
'Good and careful draftsmanship is still important. The indictment * * * should be definite, certain and unambiguous. * * * There is no magic formula. Common sense will be a better guide than arbitrary and artificial rules.'  (Emphasis added.)
[53 Del. 267] This quotation expresses the general standard by which code indictments are to be measured under our new rules. The indictment may follow the statutory language as long as the end result will satisfy the other requirements above set forth. The question then becomes, what are the standards of precision, et cetera, as above referred to, that are required of a valid burglary indictment so as to give a defendant adequate notice and protect him from subsequent prosecutions? With reference to the intent element, it is the generally accepted rule that the:
'Particular felony  intended to be committed in the unlawful breaking and entering must be alleged. It is not sufficient to aver an unlawful breaking and entering with an intent to commit one of the felonies mentioned in a designated statute, or a specified section of the code, under which the indictment is drawn, or to allege an attempt to commit a felony, the nature of which is to the grand jurors unknown.  (Emphasis added.)
* * *
* * *
'This is the general rule of the adjudicated cases and the only safe course for the pleader to follow. The mere allegation of an intent to commit a felony, is a mere conclusion of the pleader. The facts constituting the elements of the particular felony need not be alleged, it being sufficient to name the felony; * * *.' 
[53 Del. 268] This general rule has been the law in Delaware for at least 120 years. In State v. Eaton, Oyer & Term, Kent, 1840, 3 Har., Del., 554, the Court said:
'Burglary is a very technical crime; the breaking and entry are entirely technical, and different from the usual understanding of breaking and entry; but the law makes another ingredient necessary, the intent to commit murder, rape, robbery or some other felony.  The intent then is of the essence of the offense, and the prosecution must point the intent  and prove that it was for the purpose of committing some specific felony; * * *.' (Emphasis added.)
Because of the above quoted rules and principles, I must conclude that the subject counts in the respective indictments  are invalid and must be quashed.
The intent element of a burglary indictment requires that the specific crime intended to be committed must be set forth. This ancient requirement is not lessened by the liberal spirit of our new rules, for in order to conform with the standards set forth in Rule 7(c) the statement of the charge must still be a definite expression of the essential facts which clearly informs the defendant of the precise offense with which he is charged. Though the defective language was a virtual quote from the statute, it was marred by ambiguity and indefiniteness. The statutory language merely indicates that crime would be burglary regardless of what crime the person intended to commit,[53 Del. 269] but this cannot be understood to mean that an indictment of an individual may charge him with an intent to commit 'any' crime therein. The ambiguity is not resolved by merely singularizing the reference to 'a' crime. The specific crime, or perhaps crimes, must be clearly and specifically set forth, otherwise, we would have a situation only slightly less ambiguous than in an indictment which simply charged a man with the 'commission of a crime' without naming the crime.
In concluding this question, there is one further observation I would like to make. Each count in an indictment must normally be considered as an individual unit, as though it were a separate indictment standing by itself. In doing this, I have found the subject counts to be defective. Future draftsmen should, however, take note of the fact that such individualized consideration would not have been necessary had the simple device of cross referencing been employed as sanctioned by Rule 7(c) in the following language:
'Allegations made in one count may be incorporated by reference in another count.'
I note that immediately following each of the subject defective counts is a count charging the appropriate defendant or defendants with the commission of a particular and specific misdemeanor, to-wit: 'Malicious mischief over $100.00 on violation of Title 11, Section 691 of the Delaware Code of 1953.' These said misdemeanors were committed on the respective nights in question, by the respective defendants, at the site in question. Had the defective counts merely included some reference to the respective and subsequently set forth misdemeanor charges, the fatal ambiguity in the defective counts would not have existed.  Because of the degree[53 Del. 270] of precision a defendant may justly demand of a criminal indictment, and because of the adverse and highly undesirable precedent it would create, I do not find myself able to correct this fatal omission by reading into the defective counts a phrase of such pervasive importance. A defendant has a right to rely on the phraseology of the indictment, and is not required to inferentially supply an omission resulting from somewhat less than precise draftsmanship in behalf of the State. It does no good to imply, as the State seems to have done, that the defendant may well know what 'crime' the State had in mind. Any such implication flies in the face of the presumption that the accused is innocent and without knowledge of the facts charged.
II. As in question I, this issue was raised by Mr. Biggs and Mr. Bader. However, Raymond Emory is the only one of their several clients involved in this issue. The co-defendants involved with Emory under this indictment are Francis L. Conley, William V. Charlton and Ronald H. Therkildsen.
This particular problem involves the sufficiency of the indictment in Criminal Action
No. 622, 1959. The indictment reads in pertinent part as follows:
(Defendants are charged by the Grand Jury)
'* * * with the following offense, a Misdemeanor: Conspiracy, in violation of Title 11, Section 105 of the Delaware Code of 1953:'
(In that they) '* * * did unlawfully, conspire, confederate and agree together, one with the other, to violate the criminal laws of Delaware by wilfully and maliciously setting on fire and burning the dwelling house of * * *' (the Rayfields). (Emphasis added.)
The emphasized language is crucial for, in essence, the defendant Emory contends that it is impossible to tell whether the indictment charges a conspiracy to commit first degree [53 Del. 271] arson (11 Del.C. § 351), second degree arson (11 Del.C. § 352), malicious mischief over $100 (11 Del.C. § 691), or malicious mischief under $100 (11 Del.C. § 692).
Relative to indictments for criminal conspiracy, it is said in Wharton:
'Like the combination itself, * * *, the object or purpose of the combination must be clearly and fully set forth in language appropriate and sufficient to show that the object to be accomplished or the end to be attained was and is unlawful, stating the particular crime or offense to be accomplished. 
* * *
* * *
'Statutory offense charged as the object sought to be accomplished, the purpose of the conspiracy must be set out in such a manner as to show clearly that it falls within the prohibition of the statute; but it is not necessary to describe the offense intended to be committed as fully and with the particularity required in an indictment in which his (sic.) commission is charged.' 
Upon this background as well as the language quoted in problem I relative to indictments in general, I make the following observations. The phrase 'by wilfully and maliciously setting on fire and burning the dwelling house of' a named person, contains all the elements of an indictment for arson in the second degree, as defined in 11 Del.C. § 352, to-wit:
'Whoever wilfully and maliciously burns or sets on fire any dwelling house, whether it is his own or that of another, in which there is not at the time a human being, is guilty of arson in the second degree * * *.'
[53 Del. 272] That phrase in the indictment adheres so closely to the statutory definition of arson in the second degree that it is a most adequate and precise aversion of the criminal object or purpose in the alleged conspiracy. Truly, the draftsman did not use the phrase 'arson in the second degree', or quote the statutory designation, but such was not required. He had an alternative, and chose to set forth the facts necessary to produce the same result. The technical statutory name for the 'objective' crime could have been used as could its section number in the code, but such usage is only required for the primary crime--Conspiracy--and in that instance it was properly employed. 
It is beyond question that the elements of first degree arson are not charged, and hence the indictment does not charge a conspiracy to commit that crime.
Because I see the indictment as being more than adequate to charge a conspiracy to commit the crime of second degree arson.
I am at a loss to understand why the State failed to make this point in its brief. Rather than do this, however, it tacitly admits that the proposed objective was not first degree arson. It goes on to admit that there is no aversion of property damage in excess of $100, ergo the objective is not averred to have been malicious mischief in violation of 11 Del.C. § 691. The State's brief writer then concludes that:
'* * * The only question is whether the essential elements of a crime are charged. Defendant himself answered this question in the affirmative as to malicious mischief under $100. 'Destroy or injure' could be done by burning, he admits, and there is no reference to value being over $100, so the allegations[53 Del. 273] as to object of the conspiracy fit the definition of at least this crime. Defendant neatly answers his own question as to what crime is being alleged as the object of the conspiracy, and also demonstrates that all the essential elements of that crime are charged.
'Since the essential elements test is met, it is unnecessary to speculate whether the essential elements of arson in the second degree are also alleged. * * *'
This argument has some merit, since the conspiracy would be none the less a conspiracy with an alleged objective of violating Sec. 692 as of violating Sec. 352. But in using its quoted analysis, the State has tended to lead the defendant to express the belief in his reply brief that he:
'understands that the State will seek to prove and will pray this Court to charge on the destruction or injury to property valued at less than $100.00 (11 Del.C., Sec. 692).'
Though I find that the indictment itself is clear and concise, I feel the State's quoted analysis has been productive of some confusion. In attempting to resolve this confusion, I must state that the Grand Jury has returned an indictment for Conspiracy to commit the crime of second degree arson. Had it intended to charge the 'objective' crime as being malicious mischief under $100, it would not have used the phrase 'setting on fire and burning'. That destruction and injury of property can be done by such a method is unquestioned. But when such methods are employed 'wilfully and maliciously' against a 'dwelling house' then the offense becomes arson--if no one is in the building at the time it is arson in the second degree. So, therefore, the State has the burden of proving a conspiracy to commit such a crime, and the defense should be prepared to meet such proof. Stated somewhat differently, Arson in the second degree may also be malicious mischief under $100, but not necessarily vice versa. The former is the 'objective' crime here, not the latter. [53 Del. 274] It will not be adequate for the State to meet the onus probandum of the latter alone; since the former is the one charged in the indictment, the former must be proved for the State to prevail.
The indictments are valid to charge the crime of conspiracy to commit arson in the second degree, and because of this, the malicious mischief aspect is moot.
III. This question is raised by Mr. Booker on behalf of his clients, Conley and Therkildsen. The problem turns around the fact that the Attorney General, Mr. Bove, and his deputy, Mr. Bell, were, on certain occasions, both present at the same time in the same room where the Grand Jury was then engaged in investigating the circumstances that gave rise to the indictments  sub judice.
Specifically, therefore, the problem is: Does the Joint presence of both the
Attorney General and his deputy before the Grand Jury during the conduct of its investigation of certain crimes, invalidate those indictments returned as the result of said investigations conducted in the joint presence of said Attorney General and his deputy? It is to be noted that we have no question of an unauthorized presence during the deliberation or voting of the Grand Jury. We are only concerned with that stage of the proceedings when the witnesses were being heard by the Grand Jury.
Rule 6(d) of our Rules of Criminal Procedure states that:
'The Attorney General, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer may be present while the grand jury [53 Del. 275] is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.'
The defendants point out that the rule refers to the Attorney General in the singular number, ergo their contention that to have said Attorney General and his deputy both present is a plurality which is violative of the rule.
To counter this contention, the State refers to Rule 54(c), wherein it is provided that:
'As used in these rules, * * * 'Attorney General' shall include any Deputy Attorney General; * * *.'
With reference to this rule, the State then goes on to argue that:
'If defendants were correct, Rule 54 would instead provide merely that the Attorney General's position could be taken by a deputy from time to time. However, it does define the term 'Attorney General' as including more than one person, thus answering defendants' argument. This is consistent with 1 Del.C.Sec. 304(a) which provides that words in the singular include the plural.'
I am moved to accept the State's argument, especially in light of the following definition of 'include':
'To comprehend or comprise, as a genus the species, the whole a part, * * *; to take or reckon in; to contain; embrace; * * *.' 
For the purposes of the question sub judice, I hold that the word 'include' in Rule 54(c) has a pluralizing effect on the term 'Attorney General' as it appears in Rule 6(d), so as to require said term be read as 'Attorney General and/or any Deputy Attorney General'. The plurality per se did not invalidate the indictments.
[53 Del. 276] Many of the cases construing the word 'include' and its various derivations, have considered the question of whether the word was one of enlargement or limitation.  I do not feel it necessary or desirable to touch on that question at this time. The question would be most significant should a special prosecutor attempt to appear before the Grand Jury. I also feel it unnecessary to construe the word 'any' as it appears in connection with 'Deputy Attorney General'. But I observe that at least it means one deputy, if not more.
The defendants have urged that the weight of numbers as to the Attorney General's office had a prejudicial effect on their cause. They offer no factual showing to back up this contention, and I do not feel inclined to speculate on not impossible circumstances that seem at best somewhat remote. I do not mean to close the door to similar arguments in future cases where there is a more substantial showing of a prima facie case of prejudice. I merely observe that considering this case sui generis there is no showing of prejudice per se or specifically. Furthermore, I do not find it unusual that the Attorney General might
well feel the need for at least one assistant to aid him in organizing the mass of testimony and witnesses heard by the jurors on the two days in question.  There is no affirmative showing that the Attorney General's office abused its privilege in this case.
Defendants' other arguments grouped under this point are equally without merit. The indictments are not invalidated.
IV. This last question has been raised on behalf of each defendant by their respective attorneys. Reduced to its essence, the problem poses the question of whether or not [53 Del. 277] the defendants were denied their privileges against self-incrimination as guaranteed by Act I, Sec. 7 of the Delaware Constitution of 1897, Del.C.Ann. The defendants refer to the fact that they had already been formally charged before a magistrate and released on bail. ...