Summary
In State v. Schreiber, 35 Del. 424, 166 A. 669, with reference to a statutory right of appeal, the court said: "This provision of the statute is clearly for the benefit of the person convicted and may, therefore, be waived by him.
Summary of this case from Abbott v. StateOpinion
05-10-1933
STATE v. SCHREIBER.
Percy Warren Green, Deputy Atty. Gen., for the State. H. Eugene Savery, of Wilmington, for defendant.
Appeal from Municipal Court of City of Wilmington.
Fred Schreiber was convicted of driving an automobile while intoxicated, and he appeals. On state's motion to dismiss appeal.
Motion granted.
HARRINGTON, J., sitting.
Percy Warren Green, Deputy Atty. Gen., for the State.
H. Eugene Savery, of Wilmington, for defendant.
Court of General Sessions for New Castle County, No. 43, January Term, 1933.
Appeal from the Municipal Court of the city of Wilmington, wherein the defendant was charged with driving an automobile while intoxicated; and case heard on motion of the State to dismiss that appeal.
It appeared that the defendant had pleaded guilty to that charge in the lower court and had been sentenced to pay a fine of $100 and costs, and in default of such payment, had, also, been sentenced to serve thirty days in the New Castle County Workhouse. He paid the fine and costs, but, nevertheless, appealed his case to this court.
The State contended that by paying the fine and costs, the defendant had waived his right of appeal; and its motion to dismiss was based on that ground.
HARRINGTON, Judge, delivering the opinion of the Court:
Article 4 of section 30 of the Constitution of 1897 gives the General Assembly the right to "grant or deny the privilege of appeal to the Court of General Sessions."
Pursuant to this provision, section 140, c. 10, Vol. 36, Laws of Delaware, provides:
"Any person convicted under the provisions of this Act shall have the right of an appeal unless otherwise stated in this Act, to the Court of General Sessions of the County, upon giving bond in the sum of Five Hundred Dollars ($500.00) to the State with surety satisfactory to the Mayor, Justice of the Peace or Judge before whom such person was committed. Such appeal to be taken and bond given within five (5) days from the time of conviction."
This provision of the statute is clearly for the benefit of the person convicted and may, therefore, be waived by him.
The defendant voluntarily paid the fine and costs imposed on him by reason of his plea of guilty and has, therefore, waived his right of appeal in this case. State v. Cohen, 45 Nev. 266, 201 P. 1027, 18 A. L. R. 804; Ann. Cas. 1913E, 300, Note; State v. People's Ice Co., 127 Minn. 252, 149 N. W. 286, Ann. Cas. 1916C, 618; 17 C. J. 48, §§ 3326, 3327.
Conceding that there may be some cases that have adopted a contrary rule (Com. v. Fleckner, 167 Mass. 13, 44 N. E. 1053; Johnson v. State, 172 Ala. 424, 55 So. 226, Ann. Cas. 1913E, 296; People v. Marks, 64 Misc. 679, 120 N. Y. S. 1106) they do not represent the weight of authority, or, as I view it, the most reasonable view of the matter.
The defendant points out that under the Motor Vehicle Act (Sections 66, 81), the revocation of a driver's license automatically follows a conviction of driving while intoxicated and contends that he has the right to clear himself of that stigma. But it is not even contended that that is a part of the sentence imposed by the lower court.
The State's motion to dismiss the appeal is, therefore, granted.