William BENOIT and Robert J. Donohue, a/k/a John Lynch, Jr., Appellants,
The STATE of Delaware, Appellee.
[54 Del. 331] Robert C. O'Hora and John P. Daley, Wilmington, for appellants.
[54 Del. 332] Charles L. Paruszewski and Thomas Herlihy, III, Deputy Attys. Gen., for the State.
[54 Del. 331] SOUTHERLAND, C. J., WOLCOTT, Justice, and DUFFY, Judge, sitting.
[54 Del. 332] SOUTHERLAND, Chief Justice.
The appellants, Benoit and Donohue, were indicted for fourth degree burglary, i. e., breaking and entering a building, or a room, or any part of a building, with intent to commit a crime. 11 Del.C. § 395. The indictment charged them with breaking into the office of the United States Savings Bond Division in Wilmington with intent to commit larceny. They were acquitted of the intent and found guilty of breaking and entering. They appeal.
Two contentions are made here:
(1) That the evidence, under the circumstantial evidence rule, is insufficient.
(2) That the charge of the court respecting the criminal responsibility of defendants as principals was erroneous.
The case made by the State was as follows:
On the southwest corner of Tenth and Orange Streets in Wilmington stands the Assimos Building, fronting on Tenth Street. It houses various offices and other business
places. It has four stories. On the third floor is the Savings Bond office, with a rear window looking south. The other apartment on that floor and the apartment on the fourth floor were vacant at the time of the events herein related. The usual access to the Assimos Building, and hence to the Savings Bond office, is through a large double door on Tenth Street. This door opens into a small vestibule from which leads a stair going upward and another stair going down to the basement. This [54 Del. 333] vestibule affords no access to the ground floor premises, which are occupied by a cutlery store and a restaurant, each having its own entrance. A smaller door to the west of the main door, also on the Tenth Street side of the building, opens upon a stairway which leads up to the fourth floor of the building and to a fire escape. On the third floor a door in the Savings Bond office affords access to this staircase; but apparently there is no access to it from the second floor.
Adjoining the rear of the Assimos Building on the south, and facing on Orange Street, is a three-story building No. 925 Orange Street. Mr. John L. La Manna was the occupant of the two upper floors of this building. At about 9:15 p. m. on the evening of September 5, 1960 (Labor Day), he heard unusual noises on the roof of the next door building. Ascending to his third floor, he observed that a rear window on the third floor of the Assimos Building was open. He notified the police. Two patrolmen, officers Sekszinski and Patton, came to interview him and then went to the Assimos Building. The officers tried the doors at both entrances. Both doors were locked. Returning to 925 Orange Street, they went up to the third floor. From this floor a window gives access to the second floor roof, that is, to a roof extending between the third floor apartment of 925 Orange Street and the southerly wall of the third and fourth floors of the Assimos Building. The officers went out upon the roof. Using a stepladder that was leaning against the wall near the window, they entered the room through the window. It was the Savings Bond office. On the preceding Friday afternoon, when the director in charge had left the office, the rear window was locked with an ordinary sash lock. The janitor, who entered the office Sunday afternoon, had not touched it. When the officers entered, they found the latch of this lock had been broken off and was lying on the floor. On a chair under the open window was a suitcase containing a set of tools, including a jimmy, a pinch-bar, a tank of oxygen, a tank of acetylene gas, pressure gauges, and an acetylene torch.
[54 Del. 334] Officer Patton heard a noise as of someone walking on the roof. He opened the door giving access to the stairway leading to the fire escape, and went up the stairs leading to the roof. Sekszinski followed him through the door. Looking down, Sekszinski saw that the door to Tenth Street at the foot of the staircase was closing. He descended the stairs, went out on Tenth Street, and met Miss Loretta Denney, who had been standing in front of the door waiting for a car that was to pick her up. She had seen a man go out the door just before the officer. He was dressed in dark clothes, wore black gloves, and appeared to be in a hurry. She later identified him as Benoit.
In the meantime, Officer Patton had ascended to the door to the roof. This door was open. It had been pushed out and the lock was broken. The officer walked over the roof flashing a light in front of him. He found Donohue hiding behind an air vent. Donohue shouted: 'Don't shoot. I give up.' Patton arrested him and asked what he was doing on the roof. Donohue said he was running; someone was chasing him and he thought they were going to rob him. At ...