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Johnson v. State

Supreme Court of Delaware

December 2, 1965

Lester McKinley JOHNSON, Defendant Below, Appellant,
STATE of Delaware, Plaintiff Below, Appellee.

Page 248

Upon appeal from judgment of Superior Court of Kent County.

[59 Del. 131] Nicholas H. Rodriguez, of Schmittinger & Rodriguez, Dover, for defendant below, appellant.

Merrill C. Trader, Deputy Atty. Gen., for plaintiff below, appellee.

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice:

The question before us is whether the defendant may be convicted under an indictment as a principal though found to be an accomplice.

The defendant was indicted for burglary in the fourth degree, charged as a principal. At the trial, there was evidence that the defendant drove two others to the scene of the crime, but that he remained in the automobile while the others entered the building. After deliberating for about an hour and a half, the jury submitted to the Court the following question:

'Is a person just as guilty if he stays in the car as the ones that acutally broke and entered?'

After conferring with counsel, the Court called in the jury and gave it the following supplemental instruction:

[59 Del. 132] 'Now, your second question, I will answer this way: It is the law of this State that where there is a breaking and entering and property is stolen, and there are two, three, or more people present, though one may take no particular active part in the breaking and entering or stealing of the property, yet if he is present, aiding, procuring, or counseling with the other or others, under the law of this State he is equally guilty with the person or persons who actually take the property.

'Now, if you should find in this case, from the evidence, that this defendant was sitting in the automobile aiding and abetting the two persons who went into the building, then in that case you could find him guilty under this charge. Is that clear?'

No objection was made to this instruction; the jury retired again; and within ten minutes returned a verdict of guilty. The defendant appeals on the ground that the supplemental instruction constituted reversible error.

First, there is the matter of whether the question is properly before us for review, in the absence of a timely objection under Superior Court Criminal Rule 30(a). [1]

Page 249

In view of the time sequences before and after the jury's query, and because it appears to us that the defendant probably would have been acquitted if the supplemental instruction were given in accordance with the defendant's contention, we think that, if error, it was basic and fundamental error, such as to fall within the category of 'plain error' noticeable by this Court under Superior Court Criminal Rule 52(b) [2] , lack of proper [59 Del. 133] objection notwithstanding. Accordingly, we turn to the merits of the question.

Relying upon Schwartz v. State, 7 W.W.Harr. 484,185 A. 233 (1936) and State v. Winsett, Del.Super., 200 A.2d 692 (1964), the defendant contends that, under the Delaware Statute, an accomplice [3] cannot be convicted under an indictment as a principal; that he must be indicted as an accomplice. We disagree.

At the time of the Schwartz case, the pertinent Statute, 1915 Code p4806 [4] , provided that an accomplice shall be deemed 'equally criminal as the principal offender, and shall be punished in the same manner, and with the same punishment.' This Court held in Schwartz that the Statute then in force did not make an accessory a principal and did not permit the conviction of a defendant as an accessory upon an indictment as a principal. It appears that the Attorney General contended in Schwartz that the established practice in Delaware permitted the indictment of an accessory as a principal. The Court, however, could find 'no uniform rule' upon the subject.

Thereafter, in 1939, the Statute was amended by 42 Del.Laws, Ch. 157. The statutory language construed in Schwartz was changed thereby so that, as now appears in 11 Del.C. § 102 [5] , instead of [59 Del. 134] being

Page 250

'equally criminal as the principal offender', an accomplice became 'guilty of the same crime or offense as the principal.' Under the Amendment, the accomplice remained punishable 'in the same manner and with the same punishment as the principal.'

The change in the Statute was significant, we think, especially in the light of the then-recent Schwartz decision. It is assumed, of course, that the General Assembly was aware of the Schwartz decision of 1936 at the time of its enactment of the ...

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