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Hodsdon v. Superior Court In and For New Castle County

Supreme Court of Delaware

February 6, 1968

William Merrill HODSDON, Petitioner,
v.
The SUPERIOR COURT of the State of Delaware, IN AND FOR NEW CASTLE COUNTY, and the Honorable William T. Quillen, a Judge of said Court, Respondents.

Reargument Denied Feb. 27, 1968.

Page 223

Upon petition for rule to show cause why a writ of prohibition should not issue. Petition denied.

William E. Taylor, Jr., Wilmington, for petitioner.

Ruth M. Ferrell, Deputy Atty. Gen., Wilmington, for respondents.

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

HERRMANN, Justice.

The question is whether a writ of prohibition may be utilized to review the order of the Superior Court denying the motion to dismiss the indictment in this case.

The basic facts are these:

The petitioner, William Merrill Hodsdon, was indicted by the Grand Jury for violating 11 Del.C. § 532, [1] in that:

'* * * on or about the 26th day of September and divers other times over a period of time beginning in approximately July 1966, in the County of New Castle, did publicly defile, defy, or cast contempt either by word or act upon the flag of the United States of America, by displaying simultaneously on the front of his residence at 3202 Fernwood Place, Wilmington, Delaware, the United Nations flag and the United States flag, with the United Nations flag in the position of honor on the right side of his house and the United States flag in the subordinate position on the left side of his house and flown in a half-mast position, in violation of Title 11, Del.C. § 532.'

The petitioner filed a motion to dismiss the indictment, asserting (1) that § 532 is unconstitutional in that 'it fails to provide

Page 224

any standard by which the defendant's conduct may be judged' and, therefore, its application to the petitioner would violate the due process clauses of the Federal and State Constitutions; (2) that § 532 is unconstitutional in that, as applied in the indictment, it violates the petitioner's right of freedom of speech under the Federal and State Constitutions; and (3) that § 532 is so vague and uncertain that it fails to properly charge a crime in violation of Del.Const. Art. I, § 7, Del.C.Ann.

The Superior Court denied the motion to dismiss the indictment, holding that § 532 is constitutional and valid. The instant petition followed, seeking a rule upon the Superior Court to show cause why a writ of prohibition should not issue, asserting that a trial of the petitioner upon the indictment would constitute denial of due process and violation of the petitioner's freedom of speech; that, therefore, the Superior Court lacks jurisdiction over the petitioner or the subject matter, and any judgment of conviction resulting from such trial will be illegal and void. Thereupon, the petitioner requests this Court to issue a rule upon the Superior Court to show cause why a writ of prohibition should not issue, staying further proceedings in the Superior Court, and prohibiting the Superior Court from attempting further to exercise jurisdiction over the petitioner by trying him for the offense charged, on the ground that § 532 is unconstitutional and void.

The petition for the rule must be dismissed, in our opinion, for the reason that its purpose is the review by this Court of an interlocutory order of the Superior Court in a criminal case, without the lack of jurisdiction of that Court over the cause or the person being reasonably apparent on the face of the record. In the final analysis, the sole objective of the petitioner at this stage is to attack the constitutionality of § 532. That Statute stands constitutional, valid, and enforceable until declared otherwise by the courts. Therefore, it cannot be said that, on the face of the record, a lack of jurisdiction in the lower court over person or cause is reasonably apparent in the instant case. This situation is thus reduced simply to an effort on the part of the petitioner to have this Court review an interlocutory order of the Superior Court in a criminal case. This we may not do. The petitioner must await a final judgment of the Superior Court before seeking review by this Court of the constitutionality of § 532.

Our general jurisdiction to review Superior Court proceedings on appeal in criminal cases, conferred by Del.Const. Art. IV, § 11, [2] is limited to cases which have reached final judgment. This constitutional limitation bars appeals to this Court from interlocutory rulings in criminal cases, as contrasted with civil causes in which appeals from interlocutory judgments are expressly authorized by the constitutional provision. We may not permit the use of the writ of prohibition to accomplish indirectly that which may not be done directly; for to do so would be to permit

Page 225

a circumvention of the constitutional limitation; and the doors would be opened, under the guise of the extraordinary remedy, to appeals from interlocutory rulings in criminal cases, whenever a violation of constitutional rights, easily asserted, has been claimed.

Manifestly, our basic constitutional policy is against piece-meal appeals in criminal cases and the delays necessarily resulting therefrom. Such public policy is well founded, in our view, because the proper administration of criminal justice requires prompt law enforcement and speedy trials. Compare Norman v. State, 4 Storey 395,177 A.2d 347 (1962).

The petitioner relies upon Raduszewski v. Superior Court, Del.,232 A.2d 95 (1967) and Bennethum v. Superior Court, 2 Storey 92, 153 A.2d 200 (1959). Neither is controlling here; each is widely different on its facts; [3] and in each the proceedings had passed the stage of the instant case and the rule to show cause had issued. Obviously, in each of those cases, the jurisdictional question raised was sufficiently apparent on the face of the record to move the Court, in the exercise of its discretion, toward the issuance of the rule. The probability of a lack of jurisdiction of the Superior Court is not thus apparent on the record before us in the instant case.

For the reasons stated, the rule to show cause is denied. [4]

ON MOTION FOR REARGUMENT

(February 27, 1968)

The petitioner points to Rule 17(1) of this Court, Del.C.Ann. [1] and contends that the issuance of a rule to show cause is mandatory thereunder by reason of the words 'shall issue'; that, therefore, we lack any discretion in the matter.

Rule 17(1) contains a grant of authority to this Court which is declaratory of its common law power. Compare Clendaniel v. Conrad, 3 Boyce, 549,83 A. 1036 (1912). Although mandatory or directory in form, the words 'shall issue' are subject nevertheless to the necessary limitation that a proper case has been made out for the exercise of the power. Compare High's Extraordinary Legal Remedies, § 803; State v. Doe,149 Conn. 216, 178 A.2d 271 (1962); Securities and Exchange Commission v. Mono-Kearsarge Consol. Min. Co. (D.C.Utah)167 F.Supp. 248 (1958); Fagan v. Robbins, 9 ...


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