[53 Del. 407] On defendant's motion for judgment of acquittal.
Charles L. Paruszewski, Deputy Atty. Gen., for State.
John M. Bader of Bader & Biggs, Wilmington, for defendant.
Motion for judgment of acquittal based on Court granting State the right to amend its information in appellate proceedings to conform with the information on which defendant was tried in the court below. This matter arises from the following facts:
Mary Louise Cannady was hired by the Wilmington City Solicitor's office as a special gambling investigator. On January 28, 1960, she drove a station wagon to the northwest corner of Tenth and Lombard Streets at the direction of police officers Joseph Donahue and Robert Bain, who were concealed in the vehicle. At 1001 Lombard Street, she got out of the station wagon and followed defendant into a store where she gave him a dollar bill and made a play for twenty-five cents on number 330, receiving in change seventy-five cents. She saw defendant write number 330 on a slip of paper and then she left the store. On February 2, 1960, she signed a warrant charging defendant with the sale or disposition of lottery tickets in violation of 11 Delaware Code, § 661.
The body of the information filed in Municipal Court of the City of Wilmington read as follows:
'Januar D. Bove, Jr., Attorney General of the State of Delaware, by Sidney J. Clark, Deputy Attorney General, now here in the Municipal Court for the City of Wilmington, at the January term of said Court, in the year of our Lord one [53 Del. 408] thousand nine hundred and sixty information makes that Clifton Coffield late of Wilmington Hundred, in the County aforesaid, on the 28th day of January in the year of our Lord, one thousand nine hundred and sixty with force of arms, at said City of Wilmington, in the County aforesaid, and within the jurisdiction of the Municipal Court, did unlawfully commit a misdemeanor, to-wit: Unlawfully did sell to Mary Louise Cannady lottery policies, to-wit: numbers or a series of figures by which a person or persons unknown promised or guaranteed that a particular number to be determined upon the happening of a contingency in the nature of a lottery would entitle the said, Mary Louise Cannady, as purchaser or player of said numbers, to receive a sum of money in excess of the sum paid by said Mary Louise Cannady purchaser or player, in violation of Title 11, Section 661 of the Delaware Code of 1953 against the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the State.'
Defendant was convicted in Municipal Court on April 26, 1960 and appealed to this Court. Whereupon, on June 3, 1960, the State filed a new information, which read as follows:
'The Attorney General of the State of Delaware on the 3rd day of June, 1960, information makes that Clifton Coffield did commit a misdemeanor:
'Clifton Coffield on the 28th day of January 1960 in the County of New Castle did: unlawfully aid and abet persons unknown to dispose of, to diverse unknown persons, lottery policies, to wit: numbers or a series of figures, by which a person or persons unknown promised and guaranteed that a particular number to be determined upon the happening of a contingency in the nature of a lottery would entitle the purchaser or player of said number to receive a sum of money in excess of the sum paid by said player.
[53 Del. 409] 'contrary to Title 11, Section 661 of the Delaware Code of 1953.'
Defendant was tried in Superior Court before a jury on January 4, 1961. At the termination of the State'c case, defendant moved for a judgment of acquittal on the basis that there was a fatal variance between the information and the proof. Whereupon, the State requested this Court to amend the information pursuant to Criminal Rule 7(e), Del.C.Ann. so that it would read the same as the information under which the defendant was tried in the lower court. The motion was granted. Neither defendant nor State offered further evidence. The jury found defendant guilty of the offense charged in the amended information.
Defendant renewed his motion for judgment of acquittal and was allowed time to file a formal motion. In this written motion defendant claims that the Court erred in allowing the amendment to the information and that the defendant should, therefore, be awarded a judgment of acquittal.
The only question for decision is whether this Court erred in allowing the amendment of the information at the end of the State's case so that it would conform ...