32 Del. 549 | Del. | 1924
delivering the opinion of the majority of the court:
Of the points raised by the argument we deem it necessary to notice only those that áre suggested by the sixth, third, and second assignments of error referred to in the preceding statement of facts.
First, as to the sixth and third assignments of error, we are constrained to hold them well taken. If a man is charged with having committed two crimes and is tried and convicted for one, may he on appeal from that conviction be tried and convicted for the other? That is the question which the sixth and third assignments of error call upon us to answer.
It has been repeatedly held in this state as well as elsewhere that in a criminal prosecution the state is not bound to prove the precise date laid in the indictment, it being sufficient if the evidence shows the alleged offense to have been committed at any time within the period mentioned by the applicable statute of limitations if any. This rule, however, whenever announced in this state has invariably been so announced in the court of original jurisdiction and applied to the case at the stage of its trial in the first instance. . No precedent other than the one now on review can be found in this state nor, so far as our investigation shows, elsewhere where the rule has been applied under such circumstances as are here found at the second trial of a case when it comes on for retrial upon an appeal. We think that the state was at liberty when the case was before the municipal court to depart in its proof from the date of the 11th as alleged in the information filed in that court and to offer in support of that information in that court evidence of the crime said to have been committed on the 14th. It did not do this, however. It presented evidence in that court solely with respect to the transaction of the 11th. The record shows that there were two separate and distinct offenses. The offenses were differentiated not alone by the respective dates, but as well by the presence of different sets of witnesses as to each. The distinct identity of the two criminal transactions is plainly
In Donaghy v. State, 6 Boyce 467, 100 Atl. 696, this cotut said that, “speaking generally an appeal effects a removal of the cause to another tribunal and involves a hearing de nova on both facts and law.” In that case the court observed that appeals from the judgments of the municipal court of the City of Wilmington are heard de nova in the Court of General Sessions as appeals to the Superior Court from a justice of the peace are heard. On appeals from a justice of the peace to the Superior Court, the rule appears to be well settled that though the hearing is de nova, yet the case on appeal must be the same, cáse that was heard below. Norton v. Janvier, 5 Harr. 346; Lord v. Townsend, 5 Harr. 457; Dominick v. Harmony Talking Machine Co., 4 Boyce 293, 88 Atl. 468. We discover nothing in reason which would make this rule prevailing in civil appeals inapplicable in criminal appeals. Indeed, while this court in the Donaghy Case, supra, did not in terms adopt for criminal appeals the analogy of the rule in civil appeals which requires the identity of the cause of action above, to correspond with that below, yet the opinion filed in that case at its appropriate points proceeds upon the conception that the rule is the same in. criminal as in civil appeals. If there is to be any
In Commonwealth v. Blood, supra, the court said:
"If the government can, on the trial of an appeal be permitted to abandon the original offense charged, and on which the accused party was tried before the magistrate, and substitute another and distinct offense in its place, and support it by proof, it is obvious that the right of appeal, which was intended solely as a benefit and privilege to the party charged, might often be-converted into a burden and a snare."
The defect which inheres in this record has been occasioned by an over-emphasis upon the general rule which allows the state to depart from the date alleged in the indictment or information. The point presented by the exceptions is not so much concerned with that rule as it is with the question of identity of offenses in the two courts. The date in this connection is of significance only as an identifying circumstance tending to show that the two offenses were distinct. The record discloses other features of evidence
As to the second assignment of error, we think it without merit. It was immaterial under the facts of this case what the
The judgment below will be reversed.
Pennewill, C. J., because of illness did not participate in the decision of this case. Richards, J., dissented.