Opinion
04-08-1937
STATE v. GUESSFORD.
Caleb M. Wright, Deputy Atty. Gen., for the State. Frederick P. Whitney and Houston Wilson, both of Georgetown, for defendant.
Nathaniel W. Guessford, Jr., was convicted for operating a motor vehicle while under the influence of intoxicating liquor, and he appeals.
Judgment in accordance with opinion.
SPEAKMAN, J., sitting.
Caleb M. Wright, Deputy Atty. Gen., for the State. Frederick P. Whitney and Houston Wilson, both of Georgetown, for defendant.
Court of General Sessions for Sussex County, No. 17, April Term, 1937.
Information for operating a motor vehicle while under the influence of intoxicating liquor.
Appeal from a judgment of conviction before a Justice of the Peace for operating a motor vehicle while under the influence of intoxicating liquor.
After showing that the defendant was arrested by a State Highway Police officer upon view and without a warrant, and that he was taken before a Justice of the Peace whose regular office was located at Georgetown, a witness called on behalf of the defendant was asked:
"I will ask you if there is a Justice of the Peace whose regular office is in Lewes?"
Objection to the question was made by. the Attorney-General on the ground of irrelevancy. Counsel for the defendant contended that the defendant following his arrest should have been taken before the Justice of the Peace whose regular office was nearest to the place where the defendant was arrested and that he would show, if permitted by the Court, that the Justice of the Peace whose regular office was nearest to the place where the defendant was arrested, was the Justice of the Peace in the Town of Lewes. In support of his contention he relied on section 5683 (section 145, chap. 165) of the Revised Code of 1935, which provided in part as follows:
"The * * * state highway police * * * are hereby empowered to arrest upon view and without warrant any person or persons violating any of the provisions of this Chapter. * * * In the event of an arrest as aforesaid, the person or persons so arrested shall be taken before a Justice of the Peace * * * provided, if the arrest be for a violation outside the City of Wilmington, it shall be the right and privilege of the person so arrested to have his or her case heard and determined by a Justice of the Peace whose regular office shall be nearest to the place where such person was arrested. It shall be a sufficient defense for any person arrested as aforesaid to show by one competent witness that there is in the State of Delaware, outside of the City of Wilmington, a Justice of the Peace whose regular office is nearer to the place where such person was arrested than the Justice before whom the case is being tried."
In response to an inquiry by the Court, the defendant's counsel conceded that the defendant did not either at the time of his arrest, or at any time thereafter prior to his trial before the Justice of the Peace make any demand upon the officer arresting him or upon any other person, that he be taken before the Justice of the Peace whose office was nearest to the place where he was arrested; nor did he show at his trial before the Justice of the Peace, by way of defense by a competent witness, that there was a Justice of the Peace whose regular office was nearer to the place where he was arrested than the Justice before whom his case was tried.
SPEAKMAN, Judge.
Section 5619 (section 81, chap. 165) of the Revised Code of 1935, for a violation of which the defendant is on trial, provides in part:
"No person shall operate a motor vehicle while under the influence of intoxicating liquor. * * * Any Justice of the Peace of the State * * * shall have power and jurisdiction to hear and determine the offense created by this Section."
From the above it is apparent that the Justice of the Peace who heard and determined the offense with which the defendant was charged, did not exceed his jurisdiction unless such jurisdiction was either limited or defeated by reason of the provisions of section 5683 of the Revised Code of 1935, above referred to.
Under the provisions of section 5683 the defendant would undoubtedly have divested the Justice of the Peace before whom he was tried of jurisdiction to hear and determine the case, if he had exercised the right and privilege conferred by that Section, including the showing by competent testimony that there was a Justice of the Peace whose regular office was nearer to the place where he was arrested than "the Justice before whom the case is being tried." The language in the Statute "the Justice before whom the case is being tried," is so clear and explicit as to be readily understood, as is also the language in the statute "it shall be the right and privilege of the person so arrested."
It is generally held by the authorities that all the rights and privileges to which a person is legally entitled, which rest in the individual and are intended forhis sole benefit may be waived whether such rights are secured by contract or conferred by Statute. Hirzel v. Silker, 4 W.W.Harr. (34 Del.) 588, 156 A. 360.
Having failed to exercise the rights and privileges conferred upon him by the Statute in due season, the defendant must be deemed to have waived them.
See, also, State v. Meader, 47 Vt. 78.
The objection made by the Attorney General is sustained.