State v. Jaroslowski

103 A. 657, 30 Del. 108, 7 Boyce 108, 1918 Del. LEXIS 26

• Court: Delaware Court of Oyer and Terminer
• Decided: March 12, 1918
• Docket: Indictment No. 53
• Status: Published

Opinion

Pbnnewill, C. J.:

[1] The statute unquestionably makes the wife in a criminal action against her husband a competent witness and makes her testimony competent testimony. It is unnecessary for us to decide now whether the wife might claim her privilege and decline to testify, but we are clearly of the opinion that the husband in such an action cannot, under a claim of privilege, prevent the wife from testifying. We therefore overrule the objection.

Mr. Layton:—! would like to have the witness asked if she would testify were she permitted to decline to testify.

Mr. Reinhardt:—I am not at all clear that she is entitled to decline.

Pennewill, C. J.:

Without deciding, either expressly or by implication, whether or not she might be compelled to testify against her husband, we will permit you to ask her whether she is willing to testify in this case against her husband.

The witness, among other questions, was asked:

“Q. Did anybody make you come or did you come of your own free will? A. My own free will. Q. You are here testifying because you are willing to testify against your husband in this case? A. Yes, sir."

The Attorney General thereupon proceeded with the examination.

Pennewill, C. J.,

after charging the jury upon the law as in State v. Prettyman, 6 Boyce, 452, 100 Atl. 477, said:

[2] It is the duty of the court to call your attention to a statute of this state (Laws 1917, c. 266) that was enacted and approved at the last session of the Legislature, and whch is in the following language:

“That in all cases where the penalty for crime prescribed by the laws of the state of Delaware is death, if the jury shall, at the time of rendering their verdict recommend the defendant to the mercy of the court, the court may, if it seems proper to do so, impose, the sentence of life imprisonment instead of death.”

This statute does not mean that the jury shall recommend the defendant to the mercy of the court in every case, but only where the facts and circumstances disclosed by the evidence warrant such recommendation.

Verdict, guilty in manner and form as indicted, with recommendation to the mercy of the court.

In imposing sentence the Chief Justice said:

Edward Jaroslowski, you have had a fair trial, and in your defense your counsel has done everything that could possibly have been done for you. But notwithstanding his efforts the jury found you guilty of murder in the first degree and in rendering their verdict recommended you to the mercy of the court. Because of such recommendation, and the testimony in the case, it seems proper to the court to impose the sentence of life imprisonment instead of death, by virtue of a statute of this state recently passed. The sentence of the court is, etc.