CHAPTER 497
FORMERLY SENATE SUBSTITUTE
NO. 1 FOR SENATE BILL NO. 356
AS AMENDED BY SENATE AMENDMENTS
1, 2, 3, 5 AND HOUSE AMENDMENTS 6,7,9,
10, 12, 14, 15, 16
AN ACT RELATING TO THE GENERAL REVISION OF THE CRIMINAL LAW OF THIS STATE BY AMENDING PART 1, TITLE 11, DELAWARE CODE, ENTITLED "CRIMES AND CRIMINAL PROCEDURES"; BY A GENERAL REVISION OF THAT PART; AND FURTHER, TO AMEND PARTS II AND III, TITLE 11, DELAWARE CODE, RELATING TO CRIMINAL PROCEDURE, PARTICULARLY CHAPTERS 19, 27, 29, 35, 37, 39, 43, 47 and 59 THEREOF; AND FURTHER TO AMEND TITLE 10, DELAWARE CODE, CHAPTER 9 RELATING TO THE FAMILY COURT BY MAKING CERTAIN REVISIONS THEREIN TO CONFORM TO REVISIONS IN TITLE 11 MADE IN THIS ACT.
Be it enacted by the General Assembly of the State of Delaware (two-thirds of all members elected to each branch concurring therein):
Section 1. Title 11, Delaware Code, is amended by repealing Part 1 thereof, except as otherwise noted in this Act, and substituting therefore a new Part 1 to read as follows:
CHAPTER 1
INTRODUCTORY PROVISIONS
PART 1 of this title shall be known as the Delaware Criminal Code.
§ 102. Applicability to offenses committed prior to effective date
(1) Except as provided in subsections (2) and (3) of this
section, this Criminal Code does not apply to offenses committed prior to its effective date. Prosecutions for offenses committed prior to its effective date shall be governed by the prior law, which is continued in effect for that purpose, as if this Criminal Code were not in force. For the purpose of this section, an offense was committed prior to the effective date of this Criminal Code if any of the elements of the offense occurred prior thereto.
(2) In any case pending on or commenced after the effective date of this Criminal Code, involving an offense committed prior to that date.
(a) Procedural provisions of this Criminal Code shall govern, insofar as they are justly applicable and their applicability does not introduce confusion, delay, or manifest injustice;
(b) Provisions of this Criminal Code according a defense or mitigations shall apply, with the consent of the defendant.
(3) Provisions of this Criminal Code governing the treatment and the release or discharge of prisoners, probationers, and parolees shall apply to persons under sentence for offenses committed prior to the effective date of this Criminal Code, except that the minimum or maximum period of their detention or supervision shall in no case be increased, nor shall the provisions of this Criminal Code affect the substantive or procedural validity of any judgment of conviction entered prior to the effective date of this Criminal Code, regardless of the fact that appeal time has not run or that an appeal is pending.
§ 103. Applicability to offenses committed after effective date
(1) The provisions of this Criminal Code establish the criminal law of Delaware and govern the construction of and punishment for any offense set forth herein committed after the effective date thereof, as well as the construction and application of any defense to a prosecution for such an offense.
(2) Unless otherwise expressly provided, or unless the context otherwise requires, the provisions of this Criminal Code govern the construction of any offense defined in a statute other than this Criminal Code and committed after the effective date
thereof, as well as the construction and application of any defense to a prosecution for such an offense.
CHAPTER 2
GENERAL PROVISIONS
CONCERNING OFFENSES
The general purposes of the provisions of this Criminal Code
are:
(1) To proscribe conduct which unjustifiably and inexcusably causes or threatens harm to individual or public interests;
(2) To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction;
(3) To define the act or omission and the accompanying mental state which constitute each offense;
(4) To differentiate upon reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefor; and
(5) To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection.
§ 202. All offenses defined by statute
(1) No conduct constitutes a criminal offense unless it is made a criminal offense by this Criminal Code or by another law.
(2) This section does not affect the power of a Court to punish for civil contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.
§ 203. Principles of construction
The general rule that a penal statute is to be strictly construed does not apply to this Criminal Code, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the purposes of the law, as stated in section 201 of this Criminal Code.
§ 204. Territorial applicability
(I) Except as otherwise provided in this section a person may be convicted under the law of Delaware of an offense committed by his own conduct or by the conduct of another for which he is legally accountable if:
(a) Either the conduct or the result which is an element of the offense occurs within Delaware; or
(b) Conduct occurring outside the State is sufficient under Delaware law to constitute a conspiracy to commit an offense within the State and an overt act in furtherance of the conspiracy occurs within the State; or
(c) Conduct occurring within the State establishes complicity in the commission of, or an attempt, solicitation, or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of Delaware; or
(d) The offense consists of the omission to perform a legal duty imposed by Delaware law with respect to domicile, residence, or a relationship to a person, thing, or transaction in the state; or
(e) The offense is based on a statute of Delaware which expressly prohibits conduct outside the State, when the conduct bears a reasonable relation to a legitimate interest of this State and the defendant knows or should know that his conduct is likely to affect that interest.
(2) Paragraph (1) (a) does not apply when causing a particular result is an element of an offense and the result is caused by conduct occurring outside Delaware which would not constitute an offense if the result had occurred in the same place,
unless the defendant intentionally, knowingly, or recklessly caused the result within Delaware.
(3) When the offense is homicide, either the death of the victim or the bodily impact causing death constitutes a "result" within the meaning of paragraph (1) (a) and if the body of a homicide victim is found within this State it is presumed that the result occurred within the State.
(1) A prosecution for murder may be commenced at any time
(2) Except as otherwise provided in this section, prosecution for other offenses are subject to the following periods of limitation:
(a) A prosecution for any felony except murder must be commenced within five years after it is committed;
(b) A prosecution for a class A misdemeanor must be commenced within three years after it is committed;
(c) A prosecution for a class B misdemeanor, a Class C misdemeanor, or a violation must be commenced within two years after it is committed.
(3) If the period prescribed by subsection (2) has expired, a prosecution for any offense in which the accused's acts include or constitute forgery, fraud, breach of fiduciary duty, or actively concealed theft or misapplication of property by an employee,. pledgee, bailee, or fiduciary may be commenced within two years after discovery of the offense has been made or should have been made in the exercise of ordinary diligence by an aggrieved party or by an authorized agent, fiduciary, guardian, personal representative, or parent (in the case of an infant) of an aggrieved party who is himself not a party to the offense. In no case shall this provision extend the period of limitation otherwise applicably by more than an additional three years beyond the period specified in subsection (2) of this section.
prosecution for any offense based upon misconduct in office by a public officer or employee may be commenced at any time when the defendant is in public office or employment or within two years thereafter. In no case shall this provision extend the period of limitation otherwise applicable by more than an additional three years beyond the period specified in subsection (2) of this section.
(5) An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.
(6) For purposes of this section a prosecution is commenced when either an indictment is found or an information is filed.
(7) The period of limitation does not run:
(a) During any time when the accused is fleeing or hiding from justice so that his identity or whereabouts within or outside the State cannot be ascertained, despite a diligent search for him;
(b) During any time when a prosecution, including a prosecution under a defective indictment or information, against the accused for the same conduct has been commenced and is pending in this State.
(8) In any prosecution in which the provisions of subsection (3) (4), or (7) of this section are sought to be invoked to avoid the limitation period of subsection (2) the State must allege and prove the applicability of subsection (3), (4) or (7) as an element of the offense.
§ 206. Method of prosecution when conduct constitutes more than one offense
(I) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each offense. The defendant's liability for more than one offense may be considered by the jury whenever the
The former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the Court that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
(1) The former prosecution was terminated, after the information had been filed or the indictment found, by a final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
(2) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the Court.
(3) The former prosecution was improperly terminated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but before verdict. Termination under any of the following circumstances is not improper.
(a) The defendant consents to the termination or waives, by motion to dismiss or otherwise, his right to object to the termination.
(b) The trial court declares a mistrial in accordance with law.
§ 208. When prosecution is barred by former prosecution for different offense
Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution in a Court having jursidction over the subject
matter of the second prosecution under the following circumstances:
(I) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 207 of this Criminal Code and the subsequent prosecution is for:
(a) Any offense of which the defendant could have been convicted on the first prosecution; or
(b) The same conduct, unless (i) the offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil, or (ii) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed, or vacated and which acquittal, final order, or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
(3) The former prosecution was improperly terminated as improper termination is defined in subsection 207 (4) of this Criminal Code and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.
§ 209. Former prosecution in another jurisdiction; when a bar
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States or another State, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this State under the following circumstances:
(1) The first prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 207 of this Criminal Code and the subsequent prosecution is based on the same conduct, unless (a) the offense for
which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil or (b) the second offense was not consummated when the former trail began; or
(2) The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed, or vacated and which acquittal, final order, or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted.
(3) The former prosecution was improperly terminated as improper termination is defined in subsection 207 (4) of this Criminal Code and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.
§ 210. Former prosecution before Court lacking jurisdiction or when fraudulently procured by defendant
A prosecution is not a bar within the meaning of section 207, 208 and 209 of this Criminal Code under any of the following circumstances:
(I) The former prosecution was before a Court which lacked jurisdiction over the defendant or the offense; or
(2) The former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting officer and with the purpose of avoiding the sentence which might otherwise be imposed; or
(3) The former prosecution resulted in a judgment of conviction which was held invalid on appeal or in a subsequent proceeding on a writ of habeas corpus, coram nobis, or similar process.
§ 221. Principles of definitions
(I) In this Criminal Code when the word "means" is
employed in defining a word or term, the definition is limited to the meaning given.
(2) In this Criminal Code, when the word "includes" is employed in defining a word or term, the definition is not limited to the meaning given, but in appropriate cases the word or term may be defined in any way not inconsistent with the definition given.
(3) If a word used in this Criminal Code is not defined herein, it has its commonly accepted meaning and may be defined as appropriate to fulfill the purposes of the provision as declared in section 201 of this Criminal Code.
§ 222. General definitions
When used in this Criminal Code:
(I) "Building", in addition to its ordinary meaning, includes any structure, vehicle or watercraft. Where a building consists of two or more units separately secured or occupied, each unit shall be deemed a separate building.
(2) "Controlled substance" or "counterfeit substance" shall have the same meaning as used in Chapter 47, Title 16, Delaware Code.
(3) "Conviction" means a verdict of guilty by the trier of fact, whether judge or jury, or a plea of guilty or a plea of nolo contendere accepted by the Court.
(4) "Dangerous instrument" means any instrument, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.
(5) "Deadly weapon" includes any weapon from which a shot may be discharged, a knife of any sort (other than an ordinary pocket knife) carried in a closed position, switchblade knife, billy, blackjack, bludgeon, metal knuckles, slingshot, razor, bicycle chain or ice pick.
(6) "Defraud" means to acquire a gain or advantage by fraud.
(7) "Drug" means any substance or preparation capable of producing any alteration of the physical, mental, or emotional condition of a person.
(8) "Female" means a person of the female sex.
(9) "Fraud" means an intentional perversion, misrepresentation, or concealment of truth.
(10) "Law" includes statutes and ordinances. Unless the context otherwise clearly requires, "law" also includes settled principles of the common law of Delaware governing areas other than substantive criminal law.
(11) "Law enforcement officer" includes police officers, the Attorney General and his deputies, sheriffs and their regular deputies, prison guards, and constables.
(12) "Lawful" means in accordance with law or, where the context so requires, not prohibited by law.
(13) "Male" means a person of the male sex.
(14) "Mental defect" means any condition of the brain or nervous system recognized as defective, as compared with an average or normal condition, by a substantial part of the medical profession.
(15) "Mental illness" means any condition of the brain or nervous system recognized as a mental disease by a substantial part of the medical profession.
(16) "Narcotic Drug" shall have the same definition as contained in the Definitions Section of Chapter 47, Title 16 of the Delaware Code.
(17) "Person" means a human being who has been born and is alive, and, where appropriate, a public or private corporation, an unincorporated association, a partnership, a government, or a governmental instrumentality.
(18) "Physical force" means any application of force upon or toward the body of another person.
(19) "Physical injury" means impairment of physical condition or substantial pain.
(20) "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, prolonged loss or impairment of the function of any bodily organ.
(21) "Therapeutic abortion" means an abortion performed pursuant to the provisions of Title 24, Delaware Code, Chapter 17, Subchapter VIII.
(22) "Unlawful" means contrary to law or, where the context so requires, not permitted by law. It does not means wrongful or immoral.
(23) "Vehicle" includes any means in or by which someone travels or something is carried or conveyed; a means of conveyance or transport, whether or not propelled by its own power.
§ 223. Words of gender or number
Unless the context otherwise requires, words denoting the singular number may, and where necessary shall, be construed as denoting the plural number, and words denoting the plural number may, and where necessary shall, be construed as denoting the singular number, and words denoting the masculine gender may, and where necessary shall, be construed as denoting the feminine gender or the neuter gender.
§ 224. Valuation of property
Whenever the value of property is determinative of the degree of an accused's criminal guilt or otherwise relevant in a criminal prosecution, it shall be ascertained as follows:
(1) Except as otherwise specified in this section, value means the market value of the property at the time and place of the crime, or if that cannot be satisfactorily ascertained, the cost of replacing the property within a reasonable time after the crime.
certain written instruments, not including those having a readily ascertainable market value, shall be ascertained as follows:
(a) The value of an instrument constituting an evidence of debt, such as a check, draft, or promissory note, shall be deemed the amount due or collectible thereon, or thereby, that figure ordinarily being the fact amount of the indebtedness less any portion thereof which has been satisfied.
(b) The value of any other instrument which creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.
(3) When the value of property cannot satisfactorily be ascertained pursuant to the standards set forth in subsections (1) and (2) of this section, its value shall be deemed to be an amount less than $100.
§ 231. Definitions relating to state of mind
(1) "Intentionally." A person acts intentionally with respect to an element of an offense when:
(a) If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause that result; and
(b) If the element involves the attendant circumstances, he is aware of the existence of such circumstances or believes or hopes that they exist.
(2) "Knowingly." A person acts knowingly with respect to an element of his offense when:
(a) If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(b) If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause that result.
(3) "Recklessly." A person acts recklessly with respect to an element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the element exists or will result from his conduct. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.
(4) "Criminal negligence." A person acts with criminal negligence with respect to an element of an offense when he fails to perceive a risk that the element exists or will result from his conduct. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
§ 232. Definition relating to element of offense
"Elements of an offense" are those physical acts, attendant circumstances, results, and states of mind which are specifically included within the definition of the offense or, if the definition is incomplete, those states of mind which are supplied by the general provisions of this Criminal Code. Facts establishing jurisdiction and venue and establishing that the offense was committed within the time period prescribed in section 205 of this Criminal Code must also be proved as elements of the offense.
§ 233. Definition and classification of offense
(I) "Crime" or "offense" means an act or omission forbidden by a statute of this State and punishable upon conviction by:
(b) Fine; or
(c) Removal from office; or
(d) Disqualification to hold any office of trust, honor, or profit under the State; or
(e) Other penal discipline.
(2) An act or omission is forbidden by a statute of this State if a statute makes the act or omission punishable by any form of punishment mentioned in subsection (1) of this section.
(3) An offense is either a felony, misdemeanor, or a violation. Any offense not specifically designated by law to be a felony or a violation is a misdemeanor.
§ 241. Conviction to precede punishment
The punishments prescribed by this Criminal Code or by any other statute of a criminal nature may be inflicted only after a judgment of conviction by a Court having jurisdiction over the person of the defendant and over the subject matter.
§ 242. Requirements for criminal liability in general
A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.
§ 243. Definition of voluntary act
"Voluntary act" means a bodily movement performed consciously or habitually as a result of effort or determination, and includes possession if the defendant knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
§ 251. Proof of state of mind required unless otherwise provided; strict liability
(1) No person may be found guilty of a criminal offense without proof that he had the state of mind required by the law defining the offense or by subsection (2) of this section.
(2) When the state of mind sufficient to establish an element of an offense is not prescribed by law, that element is established if a person acts intentionally, knowingly, or recklessly.
(3) It is unnecessary to prove the defendant's state of mind with regard to:
(a) Offenses which constitute violations, unless a particular state of mind is included within the definition of the offenses; or
(b) Offenses defined by statutes other than this Criminal Code insofar as a legislative purpose to impose strict liability for such offenses or with respect to any material element thereof plainly appears. In all cases covered by this subsection, it is nevertheless necessary to prove that the act or omissison on which liability is based was voluntary as provided in sections 242 and 243 of this Criminal Code.
§ 252. Prescribed state-of-mind requirement applies to all material elements
When a statute defining an offense prescribes the state of mind that is sufficient for the commission of the offense, without distinguishing among the elements thereof, the provision shall apply to all the elements of the offense, unless a contrary legislative purpose plainly appears.
§ 0. Substitutes for criminal negligence, recklessness, and knowledge
When a statute provides that criminal negligence suffices to establish an element of an offense, the element also is established if a person acts intentionally, knowingly, or recklessly. When recklessness suffices to establish an element of an offense, the element is also established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element of an offense, the element also is established if a person acts intentionally.
§ 0. Conditional intention
The fact that a defendant's intention was conditional is immaterial unless the condition negatives the harm or evil sought to be prevented by the statute defining the offense.
§ 255. Knowledge of high probability
When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a hgh probability of its existence, unless he actually believes that it does not exist.
§ 261. Causation
Conduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred.
§ 262. Intentional or knowing causation; different result from that expected
The element of intentional or knowing causation is not established if the actual result is outside the intention or the contemplation of the defendant unless:
(1) The actual result differs from that intended or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm intended or contemplated would have been more serious or more extensive than that caused; or
(2) The actual result involves the same kind of injury or harm as the probably result and is not too remote or accidental in its occurrence to have a bearing on the actor's liability or on the gravity of his offense.
§ 263. Reckless or negligent causation; different result from that expected or overlooked
The element of reckless or negligent causation is not established if the actual result is outside the risk of which the defendant is aware or, in the case of negligence, of which he should be aware unless:
(1) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or
(2) The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a bearing on the actor's liability or on the gravity of his offense.
§ 264. Causation in offenses of strict liability
When causing a particular result is an element of an offense for which strict liability is imposed by law, the element is not established unless the actual result is a probably consequence of the actor's conduct.
§ 271. Liability for the conduct of another
A person is guilty of an offense committed by another person when:
(1) Acting with the state of mind that is sufficient for commission of the offense, he causes an innocent or irresponsible person to engage in conduct constituting the offense; or
(2) Intending to promote or facilitate the commission of the offense he:
(a) Solicits, requests, commands, importunes, or otherwise attempts to cause the other person to commit it; or
(b) Aids, counsels, or agrees or attempts to aid the other person in planning or committing it; or
(c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so; or
(3) His conduct is expressly declared by this Criminal Code or another statute to establish his complicity.
Nothing in this section shall apply to any law enforcement officer or his agent while acting in the lawful performance of his duty.
§ 272. Liability for the conduct of another; no defense
liability of the accused is based upon the conduct of another person pursuant to section 271 of this Criminal Code, it is no defense that:
(1) The other person is not guilty of the offense in question because of irresponsibility or other legal incapacity or exemption, or because of unawareness of the criminal nature of the conduct in question or of the accused's criminal purpose, or because of other factors precluding the mental state required for the commission of the offense; or
(2) The other person has not been prosecuted for or convicted of any offense based on the conduct in question, or has previously been acquitted thereof, or has been convicted of a different offense or in a different degree, or has legal immunity from prosecution for the conduct in question; or
(3) The offense in question, as defined, can be committed only by a particular class of persons, and the defendant, not belonging to that class, is for that reason legally incapable of committing the offense in an individual capacity, unless imposing liability on him is inconsistent with the purpose of the provision establishing his incapacity.
§ 273. Liability for the conduct of another; exemption
Unless otherwise provided by this Criminal Code or by the statute defining the offense, a person is not liable for an offense committed by another person if:
(I) He is a victim of that offense; or
(2) The offense is so defined that his conduct is inevitably incident to its commission; or
(3) He terminates his complicity prior to commission of the offense and:
(a) Wholly deprives it of effectiveness in the commission of the offense; or
police or otherwise makes a proper effort to prevent the commission of the offense.
If the actor's conduct constitutes a separate offense on his part, he is liable for that offense only and not for the conduct or offense committed by the other person.
§ 274. Punishment; convictions for different degree of offense
When, pursuant to Section 271 of this Criminal Code, two or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of an offense of such degree as is compatible with his own culpable mental state and with his own accountability for an aggravating fact or circumstance.
§ 275. Parties to offenses; indictment
(1) A person indicted for committing an offense may be convicted as an accomplice to another person guilty of committing the offense.
(0) A person indicted as an accomplice to an offense committed by another person may be convicted as a principal.
§ 281. Criminal liability of corporations
A corporation is guilty of an offense when:
(1) The conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or
(2) The conduct constituting the offense is engaged in, authorized, solicited, requested, commended, or recklessly tolerated by the board of directors or by a high managerial agent acting within the scope of his employment and in behalf of the corporation; or
(3) The conduct constituting the offense is engaged in by an agent of the corporation while acting within the scope of his employment and in behalf of the corporation and,
(a) The offense is a misdemeanor or a violation; or
(b) The offense is one defined by a statute which clearly indicates a legislative intent to impose such criminal liability on a corporation.
§ 282. Criminal liability of an individual for corporate conduct
A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if the conduct were performed in his own name or behalf.
§ 283. Criminal liability of corporations; no defense
In any prosecution for an offense alleged to have been committed by a corporation, it is no defense that the act charged to constitute the offense was an impermissible corporate activity.
§ 284. Definitions relating to corporate liability
(1) "Agent" means any director, officer, or employee of a corporation, or any other person who is authorized to act in behalf of the corporation.
(2) "High managerial agent" means an officer of a corporation or any other agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees.
CHAPTER 3
PROVING AND DISPROVING
CRIMINAL GUILT
§ 301. Proving elements of the offense; State's burden
(1) In any prosecution for an offense, a prima facie case for the State consists of some credible evidence tending to prove the existence of each element of the offense.
(2) No person may be convicted of an offense unless each
element of the offense is proved beyond a reasonable doubt.
§ 302. Proving elements of the offense; defendant's burden
(1) Pursuant to subsection 301 (2) of this Criminal Code, the defendant is entitled to a jury instruction that the jury must acquit .if they fail to find each element of the offense proved beyond a reasonable doubt.
(2) The defendant may produce whatever evidence he has tending to negate the existence of any element of the offense, and, if the Court finds that a reasonable juror might believe that evidence, the defendant is entitled to a jury instruction that the jury must consider whether the evidence raises a reasonable doubt as to the defendant's guilt.
§ 303. Proof of defenses
(1) No defense defined by this Code or by another statute may be considered by the jury unless the Court is satisfied that some credible evidence supporting the defense has been presented.
(2) Evidence supports a defense when it tends to establish the existence of each element of the defense.
(3) If some credible evidence supporting a defense is presented, the defendant is entitled to a jury instruction that the jury must acquit him if they find that the evidence suggests a reasonable doubt as to the defendant's guilt.
§ 304. Proof of affirmative defenses
(1) When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trail, the defendant has the burden of establishing it by a preponderance of the evidence.
(2) Unless the Court determines that no reasonable juror could find an affirmative defense established by a preponderance of the evidence presented by the defendant, the defendant is entitled to a jury instruction that the jury must acquit him if they find the affirmative defense established by a preponderance of the evidence.
(3) An affirmative defense is established by a pre-
ponderance of the evidence when the jury are persuaded that the evidence makes it more likely than not that each element of the affirmative defense existed at the required time.
§ 305. Proving exemption from criminal liability
When this Criminal Code or another statute specifically exempts a person or activity from the scope of its application and the defendant contends that he is legally entitled to be exempted thereby, the burden is on the defendant to prove, as an affirmative defense, facts necessary to bring him within the exemption.
§ 306. Effect of presumptions
(I) There are no conclusive presumptions in this Criminal Code, and all conclusive presumptions formerly existing in the criminal law of Delaware are hereby abolished.
(2) Rebuttable presumptions formerly existing in the criminal law of Delaware are preserved except to the extent that they are inconsistent with the provisions of this Criminal Code.
(3) Notwithstanding any other provision of this Criminal Code, the following rebuttable presumptions are expressly preserved:
(a) A person is presumed to intend the natural and probable consequences of his act.
(b) A person found in exclusive possession of goods acquired as a result of the commission of a recent crime is presumed to have committed the crime.
(4) Proof of a fact tending to create a rebuttable presumption not inconsistent with the provisions of this Criminal Code or a presumption created by this Criminal Code constitutes prima facie evidence of the presumed conclusion.
(5) The Court may tell the jury of the existence of the preumption, and if it does so the defendant is entitled to a jury instruction that the presumption does not relieve the State of its burden of proving guilt beyond a reasonable doubt. Nevertheless, the jury may convict the defendant, despite the existence
of evidence tending to rebut the presumption, if they find no reasonable doubt about the defendant's guilt.
§ 307. Proof of intention, recklessness, knowledge, or belief
(1) The defendant's intention, recklessness, knowledge, or belief at the time of the offense for which he is charged may be inferred by the jury from the circumstances surrounding the act he is alleged to have done. In making the inference permitted by this section, the jury may consider whether a reasonable man in the defendant's circumstances at the time of the offense would have had or lacked the requisite intention, recklessness, knowledge, or belief.
(2) When the defendant's intention, recklessness, knowledge, or belief is an element of an offense, it is sufficient to establish a prima facie case for the State to prove circumstance surrounding the act which the defendant is alleged to have done from which a reasonable juror might infer that the defendant's intention, recklessness, knowledge, or belief was of the sort required for commission of the offense.
§ 308. Construction of provisions allowing no defense
When a provision of this Criminal Code expressly denies the applications of a specific defense, no inference is thereby created that any other defense is valid.
CHAPTER 4
DEFENSES TO CRIMINAL LIABILITY
§ 401. Mental illness or mental defect
(1) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or mental defect, the accused lacked substantial capacity to appreciate the wrongfulness of his conduct or lacked sufficient will power to choose whether he would do the act or refrain from doing it.
(0) If the defendant prevails in establishing the affirmative
defense provided in subsection (1) of this section, the trier of facts shall return a verdict of "not guilty by reason of insanity".
§ 402. Procedures when defense of mental illness or mental defect is raised
(1) The procedures for examination of the accused by his own psychiatrist or by a psychiatrist employed by the State and the circumstances under which such an examination will be permitted may be prescribed by rules of the court having jurisdiction over the offense.
(2) A psychiatrist or other expert testifying at trial concerning the mental condition of the accused shall be permitted to make a statement as to the nature of the examination, his diagnosis of the mental condition of the accused at the time of the commission of the offense charged, and his opinion as to the extent, if any, to which the capacity of the accused to appreciate the wrongfulness of his conduct or to choose whether he would do the act or refrain from doing it or to have a particular state of mind which is an element of the offense charged was impaired as a result of mental illness or mental defect at that time. He shall be permitted to make any explanation reasonably serving to clarify his diagnosis and opinion and may be cross-examined as to any matter bearing on his competence or credibility or the validity of his diagnosis or opinion.
§ 403. Disposition of person found not guilty by reason of insanity
(1) Upon the rendition of a verdict of "not guilty by reason of insanity", the Court shall, upon motion of the Attorney General, order that the person so acquitted shall forthwith be committed to the Delaware State Hospital.
(0) A person committed to the Delaware State Hospital in accordance with subsection (1) shall be kept there until the Superior Court of the county wherein the case was tried is satisfied that the public safety will not be endangered by his release. The Superior Court shall without special motion reconsider the necessity of continued detention of a person thus committed after he has been detained for one year. It shall thereafter reconsider his detention upon motion on his behalf or
whenever advised by the State Hospital that the public safety will not be endangered by his release.
§ 404. Incapacity to stand trail by reason of mental illness or mental defect
(1) Whenever the Court is satisfied, after hearing that an accused person, because of mental illness or mental defect, is unable to understand the nature of the proceedings against him, or to give evidence in his own defense, or to instruct counsel on his behalf, the Court may order the accused person to be confined and treated in the Delaware State Hospital until he is capable of standing trail. However, upon motion of the defendant, the Court may conduct a hearing to determine whether the State can make out a prima facie case against the defendant, and if the State fails to present sufficient evidence to constitute a prima facie case, the Court shall dismiss the charge. This dismissal shall have the same effect as a judgment of acquittal.
(2) When the Court finds that the defendant is capable of standing trail, he may be tried in the ordinary way, but the Court may make any adjustment in his sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the State Hospital.
§ 405. Mental illness after conviction but before sentence
(1) Whenever the Court is satisfied that a prisoner has become mentally ill after conviction but before sentencing so that he is unable understandingly to participate in the sentencing proceedings, and if the Court is satisfied that a sentence of imprisonment may be appropriate, the Court may order the prisoner to be confined and treated in the Delaware State Hospital until he is capable of participating in the sentencing proceedings.
(2) When the Court finds that the prisoner is capable of participating in the sentencing proceedings, he may be sentenced in the ordinary way, but the Court may make any adjustment in his sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the State Hospital.
§ 406. Mental illness after confinement
(a) Whenever in any case it appears to the Superior Court, upon information received from the Department of Health and Social Services that a prisoner confined with the Department, has beome mentally ill after conviction and sentence, the Court may appoint two reputable practicing physicians to inquire of the mental condition of the prisoner and make report of their finding to the Court within two days from the date of their appointment, by writing under their hands and seals. Should the report of the physicians be that the prisoner is mentally ill, he shall at once be ordered by the Court transferred from the prison facility where he is confined to the Delaware State Hospital.
(b) The expenses of the removal of such mentally ill person and of his admission into such Hospital and his maintenance therein up and until the time he is discharged by the Court, shall be borne by the State. If any such mentally ill person has any real or personal estate, the Department of Health and Social Services shall have for the expenses and charges so incurred, the same remedy as is provided in Section 5127 of Title 16.
407. Impaired mental responsibility; defense
In any prosecution for an offense an element of which is intention or knowledge, the defendant may prove as an affirmative defense by the testimony of a psychiatrist or other expert his inability, as a result of mental illness or mental defect, to have the required state of mind at the time of the offense. He may, nevertheless, be convicted of any offense which he has committed requiring a state of mind which he was able to form.
§ 421. Intoxication
(1) Except as provided in subsection (2) of this section, voluntary intoxication is an affirmative defense in a prosecution for a criminal offense only if it negatives the element of specific intent required by the crime charged.
(2) When recklessness is an element of an offense, and the defendant, as a result of voluntary intoxication, is unaware of a risk, his unawareness does not negative the mental state of
recklessness if he would have been aware of the risk had he not been intoxicated.
§ 422. Intoxication and Mental illness
Intoxication does not, in itself, constitute mental illness or mental defect, within the meaning of Section 401 of this Criminal Code.
§ 423. Intoxication not voluntary
In any prosecution for an offense it is a defense that, as a result of intoxication which is not voluntary, the actor at the time of his conduct lacked substantial capacity to appreciate the wrongfulness of his conduct or to perform a material element of the offense, or lacked sufficient will power to choose whether he would do the act or refrain from doing it.
§ 424. Definitions relating to intoxication As used in Sections 421 through 423 of this Criminal Code:
(1) "Intoxication" means the inability, resulting from the introduction of substances into the body, to exercise control over one's mental faculties.
(2) "Voluntary intoxication" means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or should know, unless he introduces them pursuant to medical advice or under such duress as would afford a defense to a prosecution for a criminal offense.
(1) In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the conduct charged to constitute the offense because he was coerced to do so by the use of, or a threat to use, force against his person or the person of another, which a reasonable person in his situation would have been unable to resist.
(2) The defense provided by subsection (1) of this section is unavailable if the defendant intentionally or recklessly placed. himself in a situation in which it was probable that he would be subjected to duress.
(3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. The presumption that a woman acting in the presence of her husband is coerced is abolished.
(1) In any prosecution for an offense, it is an affirmative defense that the accused engaged in the proscribed conduct because he was induced or encouraged to do so by a law enforcement officer or by a person acting in cooperation with a law enforcement officer, seeking to obtain evidence against him for the purpose of criminal prosecution, when the methods used were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
(2) The defense afforded by subsection (1) of this Section is unavailable when causing or threatening physical injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
§ 441. Ignorance or mistake of fact
II, any prosecution for an offense, it is a defense that the accused engaged in the conduct charged to constitute the offense under ignorance or mistake of fact if:
(1) The ignorance or mistake negatives the state of mind for the commission of the offense; or
(2) The statute defining the offense or a statute related thereto expressly provides that the ignorance or mistake constitutes a defense or exemption; or
(3) The ignorance or mistake is of a kind that supports a defense of justification as defined in this Code.
§ 451. Consent to acts not involving physical injury
In any prosecution for an offense, it is a defense that the victim consented to the act done, provided that:
(1) The act did not involve or threaten physical injury; and
(2) Such consent negatives an element of the offense.
Any person who enters the presence of other people consents to the normal physical contacts incident to such presence.
§ 452. Consent to physical injury
In any prosecution for an offense involving or threatening physical injury, it is a defense that the victim consented to the infliction of physical injury of the kind done or threatened, provided that:
(1) The physical injury done or threatened by the conduct consented to is not serious physical injury; or
(2) The physical injury done or threatened is a reasonably forseeable hazard of joint participation in any concerted activity, athletic contest, or sport not prohibited by law.
§ 453. Ineffective consent
Unless otherwise provided by this Criminal Code or by the law defining the offense, consent of the victim does not constitute a defense if:
(1) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense unless the defendant believes he is legally competent; or
(2) It is given by a person who, because of youth, mental illness, mental defect, or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable
judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
(3) It is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or
(4) It is induced by force, duress, or deception.
§ 461. Justification: a defense
In any prosecution for an offense, justification, as defined in Sections 462 through 470, is a defense.
§ 462. Justification; execution of public duty
(1) Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law or by a judicial decree, including:
(a) Laws defining duties and functions of public officers;
(b) Laws defining duties of private citizens to assist public servants in the performance of certain of their functions;
(c) Laws governing the execution of legal process;
(d) Laws governing the military services and the conduct of war; and
(e) judgments or orders of competent courts of tribunals.
(2) The justification afforded by subsection (1) of this section applies when:
(a) The defendant's conduct is required or authorized by the judgment or order of a competent court or tribunal or in the lawful execution of legal process, nothwithstanding lack of jurisdiction of the court or defect in the legal process; or
(b) The defendant believes his conduct to be required or authorized to assist a public officer in the performance of his
duties, notwithstanding that the officer exceeded his legal authority.
§ 463. Justification; choice of evils
Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the defendant, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.
§ 0. Justification; use of force in self-protection
(1) The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.
(2) Except as otherwise provided in subsections (4) and (5) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
(3) The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.
resist an arrest which the defendant knows or should know is
being made by a peace officer, whether or not the arrest is lawful.
(5) The use of deadly force is not justifiable under this section if:
(a) The defendant, with the purpose of causing death or serious physical injury provoked the use of force against himself in the same encounter; or
(b) The defendant knows that he can avoid the necessity of using deadly force with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto, or by complying with a demand that he abstain from performing a act which he is not legally obligated to perform except that:
(i) The defendant is not obliged to retreat in or from his dwelling; and
(ii) The defendant is not obliged to retreat in or from his place or work, unless he was the initial aggressor; and
() A public officer justified in using force in the performance of his duties, or a person justified in using force in his assistance, or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.
§ 465. Justification use of force for the protection of other persons
(1) The use of force upon or toward the person of another is justifiable to protect a third person when:
(a) The defendant would have been justified under Section 464 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and
(b) Under the circumstances as the defendant believes them
to be, the person whom he seeks to protect would himself have been justified in using such protective force; and
(c) The defendant believes that his intervention is necessary for the protection of the other person.
(2) Although the defendant would have been obliged under Section 464 to retreat, to surrender the possession, of a thing, or to comply with a demand before using force in self-protection, he is not obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of the other person.
(3) When the person whom the defendant seeks to protect would have been obliged under Section 464 to retreat, to surrender the possession of a thing, or to comply with a demand if he knew that he could obtain complete safety by so doing, the defendant is obliged to try to cause him to do so before using force in his protection if the actor knows that complete safety can be secured in that way.
(4) Neither the defendant nor the person whom he seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in his own.
§ 466. Justification; use of force for the protection of property
(1) The use of force upon or toward the person of another is justifiable when the defendant believes that such force is immediately necessary:
(a) To prevent the commission of criminal trespass or burglary in a building or upon real property in his possession or in the possession of another person for whose protection he acts; or
(b) To prevent entry upon real property in his possession or in the possession of another person for whose protection he acts; or
(c) To prevent theft, criminal mischief, or any trespassory taking of tangible, movable property in his possession or in the possession of another person for whose protection he acts.
(2) The defendant may in the circumstances named in subsection (I) of this section use such force as he believes is necessary to protect the threatened property, provided that he first requests the person against whom force is used to desist from his interference with the property, unless the defendant believes that:
(a) Such a request would be useless; or
(b) It would be dangerous to himself or another person to make the request; or
(c) Substantial harm would be done to the physical condition of the property which is sought to be protected before the request could effectively be made.
(3) The use of deadly force for the protection of property is justifiable only if the defendant believes that:
(a) The person against whom the force is used is attempting to dispossess the defendant of his dwelling otherwise than under a claim of right to its possession; or
(b) The person against whom the deadly force is used is attempting to commit arson, burglary, robbery, or felonious theft or property destruction and either:
(i) Had employed or threatened deadly force against or in the presence of the defendant; or
(ii) The use of force other than deadly force to prevent the commission of the crime would expose the defendant or another person in his presence to substantial danger of serious physical injury.
(4) The justification afforded by this section extends to the use of a device for the purpose of protecting property only if:
(a) The device is not designed to cause or known to create a substantial risk of causing death or serious physical injury; and
(b) The use of the particular device to protect the property from entry or trespass is reasonable under the circumstances, as the defendant believes them to be; and
(c) The device is one customarily used for such a purpose or reasonable care is taken to make known to probable intruders the fact that it is used.
§ 467. Justification; use of force in law enforcement
(1) The use of force upon or toward the person of another is justifiable when the defendant is making or assisting in making an arrest and believes that such force is immediately necessary to effect the arrest.
(2) The use of force is not justifiable under this section unless:
(a) The defendant makes known the purpose of the arrest or believes that it is otherwise known or cannot reasonably be made known to the person to be arrested; and
(b) When the arrest is made under a warrant, the warrant is valid or believed by the defendant to be valid; or
(c) When the arrest is made without a warrant, the defendant believes the arrest to be lawful.
(3) The use of deadly force is justifiable under this section if all other reasonable means of apprehension have been exhausted, and:
(a) The defendant believes the arrest is for any crime involving physical injury or threat thereof and the deadly force is directed at a vehicle to disable it for the purpose of effecting the arrest, or the defendant believes the arrest is for a felony involving physical injury or threat thereof.
(b) The defendant believes that the force employed creates no substantial risk of injury to innocent persons; and
(c) The defendant believes that there is a substantial risk that the person to be arrested will cause death or serious physical injury, or will never be captured if his apprehension is delayed.
(4) The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably
have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which he believes to be immediately necessary to prevent the escape of a person from a jail, prison, or other institution for the detention of persons charged with or convicted of a crime.
(5) The use of force upon or toward the person of another is justifiable when the defendant believes that such force is immediately necessary to prevent such other person from committing suicide, inflicting serious physical injury upon himself, or committing a crime involving or threatening physical injury, damage to or loss of property, or a breach of the peace, except that the use of deadly force is not justifiable under this subsection unless:
(a) The defendant believes that there is a substantial risk that the person whom he seeks to prevent from committing a crime will cause death or serious physical injury to another unless the commission of the crime is prevented and that the use of deadly force presents no substantial risk of injury to innocent persons; or
(b) The defendant believes that the use of deadly force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any manner that the law may require, that such force will be used if they do not obey.
§ 468. Justification; use of force by persons with special responsibility for care, discipline, or safety of others
The use of force upon or toward the person of another is justifiable if:
(I) The defendant is the parent, guardian, or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of a parent, guardian, or other responsible person and:
(a) The force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and
(b) The force used is not designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain or mental distress, or gross degradation; or
(2) The defendant is a teacher of a person otherwise entrusted with the care or supervision of a minor for a special purpose and:
(a) The defendant believes that the force used is necessary to further the special purpose, including the maintenance of reasonable discipline in a school, class, or other group, and that the use of the force is consistent with the welfare of the minor; and
(b) The degree of force, if it had been used by the parent or guardian of the minor, would be justifiable under paragraph (1) (b) of this section; or
(3) The defendant is the guardian or other person similarly responsible for the general care and supervision of an incompetent person; and
(a) The force is used for the purpose of safeguarding or promoting the welfare of the incompetent person, including the prevention of his misconduct or, when such incompetent person is in a hospital or other institution for his care and custody, for the maintenance of reasonable discipline in such institution; and
(b) The force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme or unnecessary pain, mental distress, or humiliation; or
(4) The defendant is a doctor or other therapist of a person assisting him at his direction, and:
(a) The force is used for the purpose of administering a recognized form of treatment which the defendant believes to be adapted to promoting the physical or mental health of the patient; and
(b) The treatment is administered with the consent of the
patient or, if the patient is a minor or an incompetent person, with the consent of his parent, guardian, or other person legally competent to consent in his behalf, or the treatment is administered in an emergency when the defendant believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent; or
(5) The defendant is a warden or other authorized official of a correctional institution, and:
(a) He believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution; and
(b) The nature of degree of force used is not forbidden by any statute governing the administration of the institutuion; and
(c) If deadly force is used, its use is otherwise justifiable under this Criminal Code; or
(6) The defendant is a person responsible for the safety of a vessel or an aircraft or a person acting at his direction, and
(a) He believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order; and
(b) If deadly force is used, its use is otherwise justifiable under this Criminal Code; or
(7) The defendant is a person who is authorized or required by law to maintain order or decorum in a vehicle, train or other carrier or in a place where others are assembled, and:
(a) He believes that the force used is necessary for such purpose; and
(b) The force used is not designed to cause or known to create a substantial risk of causing death, physical injury, or extreme mental distress.
§ 469. Provision generally applicable to justification
(1) When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such relief would establish a justification under Sections 462 to 468 but the defendant is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
(0) When the defendant is justified under Sections 462 to 468 in using force upon or toward the person of another but he recklessly or negligently injuries or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving recklessness or negligence towards innocent persons.
§ 470. Definitions relating to justification
(1) "Force", in addition to its ordinary meaning, includes confinement.
(0) "Physical force" means force used or directed toward the body of another person.
(1) "Unlawful force" means force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious bodily harm.
(2) "Deadly force" means force which the defendant uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious physical injury. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by
the production of a weapon or otherwise, so long as the defendant's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.
(5) "Dwelling" means any building or structure,. though movable or temporary, or a portion thereof, which is for the time being the defendant's home or place of lodging.
In any prosecution for an offense, it is an affirmative defense that the accused was granted immunity from prosecution for that offense by the Attorney General or his deputy or by Court order pursuant to § 3508 of this Title. It is also an affirmative defense that the accused was granted immunity from prosecution for a different offense when prosecution for the offense as to which immunity was granted under the provisions of Section 208 of this Criminal Code, provided that the Attorney General or his deputy may, in granting immunity, stipulate that the immunity applies only to a specific offense, in which case effect shall be given to the stipulation.
CHAPTER 5
SPECIFIC OFFENSES
SUBCHAPTER 1
INCHOATE CRIMES
§ 501. Criminal solicitation in the third degree
A person is guilty of criminal solicitation in the third degree when, intending that another person engage in conduct constituting a misdemeanor, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in conduct that would constitute the misdemeanor or an attempt to commit the misdemeanor or which would establish the other's complicity in its commission or attempted commission.
§ 502. Criminal solicitation in the second degree
A person is guilty of criminal solicitation in the second degree when, intending that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in conduct which would constitute the felony or an attempt to commit the felony, or which would establish the other's complicity in its commission or attempted commission.
Criminal solicitation in the second degree is a class E felony.
§ 0. Criminal solicitation in the first degree
A person is guilty of criminal solicitation in the first degree when, intending that another person engage in conduct constituting a class A felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in conduct which would constitute the felony or an attempt to commit the felony, or which would establish the other's complicity in its commission or attempted commission.
Criminal solicitation in the first degree is a class D felony.
§ 511, Conspiracy in the third degree
A person is guilty of conspiracy in the third degree when, intending to promote or facilitate commission of a misdemeanor, he:
(1) Agrees with another person or persons that they or one or more of them will engage in conduct constituting the misdemeanor or an attempt or solicitation to commit the misdemeanor; or
(2) Agrees to aid another person or persons in the planning or commission of the misdemeanor or an attempt or solicitation to commit the misdemeanor; and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy.
Conspiracy in the third degree is a class A misdemeanor.
§ 512. Conspiracy in the second degree
A person is guilty of conspiracy in the second degree when, intending to promote or facilitate the commission of a felony, he:
(1) Agrees with another person or persons that they or one or more of them will engage in conduct constituting the felony or an attempt or solicitation to commit the felony; or
(2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or solicitation to commit the felony; and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy.
Conspiracy in the second degree is a class E felony.
§ 513. Conspiracy in the first degree
A person is guilty of conspiracy in the first degree when, intending to promote or facilitate the commission of a class A felony, he:
(1) Agrees with another person or persons that they or one or more of them will engage in conduct constituting the felony or an attempt or solicitation to commit the felony; or
(2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or solicitation to commit the. felony, and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy.
Conspiracy in the first degree is a class D felony.
§ 521. Provisions relating to conspiracy
(1) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy, so long as the multiple crimes are the object of the same agreement of continuous conspiratorial relationship. He may be convicted of the degree of conspiracy which includes the most serious offense which he is found guilty of conspiring to commit.
511-513 of this Criminal Code, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit the crime with the other person or persons, whether or not he knows their identity.
(3) No person may be convicted of conspiracy to commit an offense when an element of the offense is agreement with the person with whom he is alleged to have conspired, or when the person with whom he is alleged to have conspired is necessarily involved with him in the commission of the offense.
§ 522. Joinder and venue in conspiracy prosecutions
(I) Subject to the provisions of subsection (2) of this section, two or more persons charged with conspiracy to commit a crime may be prosecuted jointly if:
(a) They are charged with conspiring with one another; or
(b) The conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct.
(2) In any joint prosecution under subsection (1) of this section:
(a) No defendant shall be charged with a conspiracy in any county other than one in which he entered into the conspiracy or one in which an overt act pursuant to the conspiracy was done by him or by a person with whom he conspired; and
(b) Neither the criminal liability of any defendant nor the admissibility against him of evidence of acts or declaration of another shall be enlarged by the joinder; and
(c) The Court may order a severance or take a special verdict as to any defendant who so requests, if it deems such action necessary or appropriate to promote the fair determination of his guilt or innocence, and the Court may take any other proper measures to protect the fairness of the trial.
§ 523. Criminal solicitation and conspiracy; no defense
(1) It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited because of irresponsibility or other legal incapacity or exemption, or because of unawareness of the criminal nature of the conduct solicited or of the defendant's criminal purpose, or because of other factors precluding the mental state required for the commission of the crime in question.
(2) It is no defense to a prosecution for criminal conspiracy that, because of irresponsibility or other legal incapacity or exemption, or because of unawareness of the criminal nature of the agreement or the conduct contemplated or of the defendant's criminal purpose, or because of other factors precluding the mental state required for commission of the conspiracy or the crime contemplated, one or more of the defendant's co-conspirator§ could not be guilty of the conspiracy of the crime contemplated.
§ 531. Attempt to commit a crime
A person is guilty of an attempt to commit a crime if he:
(1) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
(2) Intentionally does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
Attempt to commit a crime is an offense of the same grade and degree as the most serious offense which the accused is found guilty of attempting.
§ 532. "Substantial step" defined
A "substantial step" under section 531 is an act or omission which leaves no reasonable doubt as to the defendant's intention to commit the crime which he is charged with attempting.
§ 533. Conduct intended to aid another to commit a crime
A person who engages in conduct intended to aid another person to commit a crime is guilty of an attempt to commit the crime, although the crime is not committed or attempted by the other person, provided that his conduct would establish his complicity under section 271 of this Criminal Code if the crime were committed by the other person.
§ 541. Criminal solicitation, conspiracy, attempt to commit a crime; defense
(1) In any prosecution for criminal solicitation or conspiracy in which the crime soliciated or the crime contemplated by the conspiracy was not in fact committed, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the accused prevented the commission of the crime.
(2) In any prosecution for an attempt to commit a crime it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the accused avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish avoidance, by taking further and affirmative steps which prevented the commission of the crime attempted.
(3) A renunciation is not "voluntary and complete" within the meaning of this section if it is motivated in whole or in part by:
(a) A belief that circumstances exist which increase the probability of detection or apprehension of the accused or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or
(b) A decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.
§ 542. Exemption of law enforcement officers
Nothing in Subchapter 1 of Chapter 5 of this Criminal Code shall apply to any law enforcement officer or his agent while acting in the lawful performance of his duty.
SUBCHAPTER II
OFFENSES AGAINST THE PERSON
Subpart A
Assaults and Related Offenses
§ 601. Offensive touching
A person is guilty of offensive touching when he intentionally touches another person, either with a member of his body or with any instrument, knowing that he is thereby likely to cause offense or alarm to such person.
Offensive touching is a class B misdemeanor.
A person is guilty of menacing when by some movement of his body or any instrument he intentionally places another person in fear of imminent physical injury.
Menacing is a class B misdemeanor.
§ 1. Reckless endangering in the second degree
A person is guilty of reckless endangering in the second degree when he recklessly engages in conduct which creates a substantial risk of physical injury to another person.
Reckless endangering in the second degree is a class A misdemeanor.
§ 2. Reckless endangering in the fast degree
A person is guilty of reckless endangering in the first degree when he recklessly engages in conduct which creates a substantial risk of death to another person.
Reckless endangering in the first degree is a class D felony.
§ 611. Assault in the third degree
A person is guilty of assault in the third when:
(1) He intentionally or recklessly causes physical injury to another person; or
(2) With criminal negligence he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
Assault in the third degree is a class A misdemeanor.
§ 612. Assault in the second degree
A person is guilty of
assault in the second degree when:
(1) He intentionally causes serious physical injury to another person; or
(0) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(1) He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(2) He intentionally causes physical injury to a law enforcement officer who is acting in the lawful performance of his duty.
Assault in the second degree is a class C felony.
§ 613. Assault in the first degree
A person is guilty of assault in the first degree when:
(I) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(2) He intentionally disfigures another person seriously and permanently, or intentionally destroys, amputates, or disables permanently a member or organ or another person's body; or
(3) He recklessly engages in conduct which creates a substantial risk of death to another person, and thereby causes serious physical injury to another person; or
(4) In the course of or in furtherance of the commission or attempted commission of a felony or immediate flight therefrom, he intentionally or recklessly causes serious physical injury to another person; or
(5) He intentionally causes serious physical injury to a law enforcement officer who is acting in the lawful performance of his duty.
Assault in the first degree is a class B felony.
§ 621. Terroristic threatening
A person is guilty of terroristic threatening when:
(a) He threatens to commit any crime likely to result in death or in serious injury to person or property;
(b) He makes false statements:
(1) intending to cause evacuation of a building, place of assembly, or facility of public transportation; or
(2) intending to cause serious inconvenience;
(3) in reckless disregard of the risk of causing terror or serious inconvenience.
Terroristic threatening in a class A misdemeanor. § 625. Unlawfully administering drug
A person is guilty of unlawfully administering drugs when, for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness, or other alteration of
the physical or mental condition of another person by administering to him, without his consent, a drug.
Unlawfully administering drugs in a class A misdemeanor.
§ 626. Unlawfully administering controlled substance or counterfeit substance or narcotic drugs
A person is guilty of unlawfully administering controlled substance or counterfeit substance or narcotic drugs when, for a purpose other than lawful medical or therapeutic treatment, he intentionally introduces or causes introduction into the body of another person, without his consent, a controlled substance or counterfeit substance of narcotic drug.
Unlawfully administering controlled substance or counterfeit substance or narcotic drugs is a class E felony.
§ 627. Prohibited acts No person shall:
(a) Intentionally smell or inhale the vapors or fumes from any substance having the property of releasing toxic vapors or fumes for the purpose of producing in himself a condition of intoxication, inebriation, exhilaration, stupefaction, or lethargy or for the purpose of dulling his brain or nervous system; provided, that nothing in this Section shall prohibit the inhalation of the vapors of fumes of any anesthesia for medical or dental purposes;
(b) Sell or offer to sell to any person any material, product, or article of commerce containing any substance having a property of releasing toxic vapors or fumes, if he has knowledge or is in the possession of such facts that he should have knowledge, that the material, product or article of commerce sold or offered for will be used for the purpose of committing any of the acts proscribed in subsection (a) of this Section;
(c) Purchase or offer to purchase for himself or any other person, any material, product or article of commerce containing any substance having the property of releasing toxic vapors and fumes if such purchase or offer to purchase is made for the purpose of committing any of the acts proscribed in subsection (a) of this Section.
Any violation of this section shall be a class C misdemeanor.
Subpart B
Acts causing Death
§ 631. Criminally negligent homicide
A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.
Criminally negligent homicide is a class E felony.
A person is guilty of manslaughter when:
(1) He recklessly causes the death of another person; or
(2) With intent to cause serious physical injury to another person he causes the death of such person, employing means which would to a reasonable man in the defendant's situation, knowing the facts know to him, seem likely to cause death; or
(3) He intentionally causes the death of another person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance; or
(4) He commits upon a female an abortion which causes her death, unless such abortion is a therapeutic abortion and the death is not the result of reckless conduct; or
(5) He intentionally causes another person to commit suicide. Manslaughter is a class 13 felony.
§ 635. Murder in the second degree
A person is guilty of murder in the second degree when:
(1) He recklessly causes the death of another person under circumstances which manifest a cruel, wicked, and depraved indifference to human life; or
(2) In the course of and in furtherance of the commission
or attempted commission of a felony or immediate flight therefrom, he causes the death of another person.
Murder in the second degree is a class A felony.
§ 636. Murder in the first degree
A person is guilty of murder in the first degree when:
(1) He intentionally causes the death of another person; or
(2) In the course of and in furtherance of the commission or attempted commission of a felony or immediate flight therefrom, he recklessly causes the death of another person; or
(3) He intentionally causes another person to commit suicide by force, duress or deception.
Murder in the first degree is a class A felony, and is punished as provided in section 4209 of this Criminal Code.
§ 641. Extreme emotional distress
The fact that the accused intentionally caused the death of another person under the influence of extreme emotional distress is a mitigating circumstance, reducing the crime of murder in the first degree as defined by section 636 of this Criminal Code to the crime of manslaughter as defined by section 632 of this Criminal Code. The fact that the accused acted under the influence of extreme emotional distress must be proved by him by a preponderance of the evidence. The accused must further prove by a preponderance of the evidence that there is a reasonable explanation or .excuse for the existence of the extreme emotional distress. The reasonableness of the explanation or excuse shall be determined from the viewpoint of a reasonable person in the accused's situation under the circumstances as he believed them to be.
A person is guilty of promoting suicide when he intentionally causes or aids another person to attempt suicide, or when he intentionally aids another person to commit suicide.
Promoting suicide is a class D felony.
Subpart C
Abortion and Related Offenses
A person is guilty of abortion when he commits upon a pregnant female an abortion which causes the miscarriage of the female, unless the abortion is a therapeutic abortion.
Abortion is a class D felony.
A female is guilty of self-abortion when she, being pregnant, commits or submits to an abortion upon herself which causes her abortion, unless the abortion is a therapeutic abortion.
Self-abortion is a class A misdemeanor.
§ 1. Issuing abortional articles
A person is guilty of issuing abortional articles when he manufactures, sells, or delivers any instrument, article, medicine, drug, or substance with intent that the same be used in commiting an abortion upon a female in circumstances which would constitute a crime defined by the Criminal Code.
Insuing abortional articles is a class B misdemeanor.
"Abortion" means an act committed upon or with respect to a female, whether by another person or by the female herself, whether directly upon her body or by the administering, taking, or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female.
Subpart D
Sexual Offenses
A person is guilty of sexual assault when he has sexual
contact with another person not his spouse or causes the other to have sexual contact with him or a third person; if
(1) He knows that the contact is offensive to the victim; or
(2) He knows that the contact occurs without the consent of the victim; or
(3) The contact occurs with the consent of the victim, but the defendant knows that the victim is less than 16 years old and the defendant is at least 4 years older.
Sexual assault is a class A misdemeanor.
(1) A male is guilty of sexual misconduct when he engages in sexual intercourse with a female not his wife who is less than 16 years old and he is at least 4 years older.
(2) A person is guilty of sexual misconduct when he engages in deviate sexual intercourse with another person less than 16 years old and he is at least 4 years older.
Sexual misconduct is a class E felony.
A male is guilty of rape when he intentionally engages in sexual intercourse with a female not his wife without her consent, or when he intentionally engages in sexual intercourse with a male without such male's consent.
Rape is a class B felony. If in the course of the offense the defendant inflicts serious physical, mental, or emotional injury upon the victim, or if the victim was not the defendant's voluntary social companion on the occasion of the crime and had not previously permitted him sexual contact, the offense is a class A felony.
deviate sexual intercourse with another person without that person's consent.
Sodomy is a class C felony unless the defendant inflicts serious physical, mental, or emotional injury upon the victim or unless the victim is less than 12 years old, in which case the offense is a class B felony. Any person convicted of committed sodomy while such person is an inmate in a prison or jail, upon conviction shall serve a mandatory three years in addition to any sentence such person was serving at the time of the offense. The mandatory three year sentence shall begin only after all other sentences have been served, and shall not run concurrently with any sentence nor shall such sentence be reduced.
§ 767. Rape, sodomy, sexual assault; definition of "without consent"
Sexual intercourse, deviate sexual intercourse, or sexual contact is "without consent" when:
(I) The defendant compels the victim to submit by force or by threat of imminent death, serious physical injury, extreme pain, or kidnapping, to be inflicted upon anyone, or by any other threat which would compel a reasonable person under the circumstances to submit; or
(2) The defendant knows that the victim is unconscious, asleep, or otherwise unaware that a sexual act is being performed; or
(3) The victim is less than 12 years old; or
(4) The defendant knows that the victim mistakenly believes that he is the defendant's spouse; or
(5) The defendant knows that the victim suffers from a mental illness or mental defect which renders him incapable of appraising the nature of his conduct; or
(6) The defendant has substantially impaired the victim's power to appraise or control his conduct by administering or employing without the other person's knowledge or against his will drugs, intoxicants, or other means for the purpose of preventing resistance.
A person is guilty of indecent exposure if he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm.
Indecent exposure is a class B misdemeanor. § 771. Incest
A person is guilty of incest if he engages in sexual intercourse with another person who has one of the following relationships with him:
A man and his father's sister. A man and his mother's sister. A man and his sister.
A man and his granddaughter. A man and his father's wife. A man and his son's wife.
A man and his wife's daughter.
A man and the daughter of his wife's son or daughter.
A woman and her father.
A woman and her father's brother. A woman and her mother's brother. A woman and her brother.
A woman and her grandson.
A woman and her mother's husband.
A woman and her husband's son.
A woman and the son of her husband's son or daughter.
The relationships referred to herein include blood relationships without regard to legitimacy, and relationships by adoption.
Incest is a class A misdemeanor and is an offense within the exclusive original jurisdiction of the Family Court.
772. Provisions generally applicable to sexual offenses
(1 ) Mistake as to age. Whenever in the definition of a sexual offense the criminality of conduct depends on a child's being below the age of 12, it is no defense that the actor did not know the child's age, or reasonably believed the child to be older than 12. When criminality depends on the child's being below an age other than 12, it is a defense that the actor reasonably believed the child to be above the critical age.
(2) Spouse relationships. Whenever the definition of a sexual offense excludes conduct with a spouse, the exclusion shall be deemed to extend to persons living as man and wife, regardless of the legal status of their relationship. When the definition of a sexual offense excludes conduct with a spouse or conduct by a woman, this shall not preclude conviction of a spouse or woman as accomplice in a sexual offense which he or she causes another person not within the exclusion to perform.
(3) Testimony of complaints. No person shall be convicted of a sexual offense which is a felony upon the uncorroborated testimony of the alleged victim. Corroboration may be circumstantial.
§ 773. Definitions generally applicable to sexual offenses
(1) "Sexual offense" means any offense defined by sections 761 through 772 of this Criminal Code.
(0) "Sexual intercourse" means any act of coitus between male and female and includes intercourse with the mouth or anus. It occurs upon any penetration, however slight; emission is not required.
(0) "Deviate sexual intercourse" means intercourse between persons of the same sex, including intercourse with the mouth or anu"Sexual contact" means any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire of either party.
(4) "Sexual contact" means any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire of either party.
Subpart E
Kidnapping and Related Offenses
§ 781. Unlawful imprisonment in the second degree
A person is guilty of unlawful imprisonment in the second degree when he knowingly and unlawfully restrains another person.
§ 781. Unlawful imprisonment in the first degree
A person is guilty of unlawful imprisonment in the first degree when he knowingly and unlawfully restrains another person under circumstances which expose that person to the risk of serious physical injury.
Unlawful imprisonment in the second degree is a class A misdemeanor.
Unlawful imprisonment in the first degree is a class E felony.
A person is guilty of kidnapping when he unlawfully restrains another person with any of the following purposes:
To hold him for ransom or reward; or
(1) To use him as a shield or hostage; or
(2) To facilitate the commission of any felony or flight thereafter; or
(3) To inflict physical injury upon him, or to violate or abuse him sexually; or
(4) To terrorize him or a third person.
Kidnapping is a class A felony unless the actor voluntarily releases the victim alive, unharmed, and in a safe place prior to trail, in which case it is a class B felony.
§ 784. Defense to unlawful imprisonment and kidnapping
In any prosecution for unlawful imprisonment or kidnapping it is an affirmative defense that the accused was a relative of the victim, and his sole purpose was to assume custody of the victim. In that case, the liability of the accused, if any, is governed by section 785 of this Criminal Code, and he may be convicted under section 785 when indicted for unlawful imprisonment or kidnapping.
§ 0. Interference with custody A person is guilty of interference with custody when:
(I) Being a relative of a child less than 16 years old, intending to hold the child permanently or for a prolonged period, and knowing that he has no legal right to do so, he takes or entices the child from his lawful custodian; or
(2) Knowing that he has no legal right to do so, he takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or an institution. Interference with custody is a class A misdemeanor.
§ 1. Kidnapping and related offenses; definitions (I) "Restrain" means to restrict another person's mov-
performing some act within or related to his official duties, or by failing or refusing to perform an official duty in such manner as to affect some person adversely; or
(8) Perform any other act which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation, or personal relationships.
Coercion is a class A misdemeanor. § 792. Coercion; defense
In any prosecution for coercion committed by instilling in the victim a fear that he or another person would be charged with a crime, it is a defense that the defendant believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of the threatened charge.
Subchapter III
OFFENSES INVOLVING PROPERTY
Subpart A
Arson and Related Offenses
§ 801. Arson in the third degree
(I) A person is guilty of arson in the third degree when he recklessly damages a building by intentionally starting a fire or causing an explosion.
(2) In any prosecution under this section it is an affirmative defense that no person other than the accused had a possessory or proprietary interest in the building.
Arson in the third degree is a class E felony.
§ 802. Arson in the second degree
(I) A person is guilty of arson in the second degree when he intentionally damages a building by starting a fire or causing an explosion.
(2) In any prosecution under this section it is an affirmative defense that:
(a) No person other than the accused had a possessory or proprietary interest in the building, or if other persons had such interests, all of them consented to the accused's conduct; and
(b) The accused's sole intent was to destroy or damage the building for a lawful purpose; and
(c) The accused had no reasonable ground to believe that his conduct might endanger the life or safety of another person or damage another building.
Arson in the second degree is a class C felony.
§ 803. Arson in the first degree
A person is guilty of arson in the first degree when he intentionally damages a building by starting a fire or causing an explosion and when:
(1) He knows that another person not an accomplice is present in the building at the time; or
(2) He knows of circumstances which render the presence of another person not an accomplice therein a reasonable possibility.
Arson in the first degree is a class B felony.
§ 804. Reckless burning or exploding
A person is guilty of reckless burning or exploding when he intentionally starts a fire or causes an explosion, whether on his own property or on another's and thereby recklessly places a building or other real or personal property of another in danger of destruction or damage or places another person in danger of physical injury.
Reckless burning or exploding is a class A misdemeanor.
(1) A person is guilty of criminal mischief when he intentionally or recklessly:
(a) Damages tangible property of another person; or
(b) Tampers with tangible property of another person so as to endanger person or property; or
(c) Tampers or makes connection with tangible property of a gas, electric, steam, or waterworks corporation, telegraph or telephone corporation or other public utility, except that in any prosecution under this subsection it is an affirmative defense that the accused engaged in the conduct charged to constitute an offense for a lawful purpose.
(2) Criminal mischief is punished as follows:
(a) Criminal mischief is a class E felony if the actor intentionally causes pecuniary loss of $1,500 or more, or if the actor intentionally causes a substantial interruption or impairment of public communication, transportation, supply of water, gas, or power, or other public service;
(b) Criminal mischief is a class A misdemeanor if the actor intentionally or recklessly causes pecuniary loss in excess of $100.
(c) Otherwise criminal mischief is a class B misdemeanor.
(3) It is a defense that the defendant has a reasonable ground to believe that he has a right to engage in the conduct set forth in subsection (1) of this section.
Subpart B
Criminal Trespass and Burglary
§ 820. Trespassing with intent to peer or peep into a window or door of another
A person is guilty of trespassing with intent to peer or peep into a window or door of another when he knowingly enters upon the occupied property or premises of another utilized as a
dwelling, with intent to peer or peep into the window or door of such property or premises and, who while on such property or premises, otherwise conducts himself in a manner commonly referred to as "Peeping Tom". Any person violating the provisions of this section may be referred by the court to the Delaware State Hospital for examination and for treatment. Justices of the Peace shall have concurrent jurisdiction of violations of this section.
Trespassing with intent to peer or peep into a window or door of another is a class B misdemeanor.
§ 821. Criminal trespass in the third degree
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully upon real property.
Criminal trespass in the third degree is a violation.
§ 0. Criminal trespass in the second degree
A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner manifestly designed to exclude intruders.
Criminal trespass in the second degree is a class C misdemeanor.
§ 1. Criminal trespass in the first degree
A person is guilty of criminal trespass in the first degree when lie knowingly enters or remains unlawfully in a dwelling.
Criminal trespass in the first degree is a class A misdemeanor.
§ 2. Burglary in the third degree
A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.
Burglary in the third degree is a class D felony.
§ 825. Burglary in the second degree
A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully:
(1) In a dwelling with intent to commit a crime therein; or
(2) In a building and when, in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in the crime.
Burglary in the second degree is a class C felony.
§ 826. Burglary in the first degree
A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling at night with intent to commit a crime therein, and when, in effecting entry or when in the dwelling or in immediate flight therefrom, he or another participant in the crime:
(1) Is armed with explosives or a deadly weapon; or
(2) Causes physical injury to any person who is not a participant in the crime.
Burglary in the first degree is a class B felony.
A person may be convicted both of burglary and of the offense which it was the purpose of his unlawful entry to commit or for an attempt to commit that offense.
§ 828. Possession of burglar's tools
A person is guilty of possession of burglar's tools when he possesses any tool, instrument, or other thing adapted, designed,
or commonly used for committing or facilitating offenses involving unlawful entry into premises, or offenses involving forcible breaking of safes or other containers or depositories of property, under circumstances evincing an intent to use or knowledge that some other person intends to use the same in the commission of an offense of such character.
Possession of burglar's tools is a class E felony.
§ 829. Definitions relation to criminal trespass and burglary
(1) "Premises" include the term "building" as defined in section 222 of this Criminal Code, and any real property.
(2) "Dwelling" means a building which is usually occupied by a person lodging therein at night.
(3) "Night" means a period between 30 minutes after sunset and 30 minutes before sunrise.
(4) A person "enters or remains unlawfully" in or upon premises when he is not licensed or privileged to do so. A person, who regardless of his intent, enters or remains upon premises which appear at the time to be open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of the premises or another authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public.
(5) A person "enters" upon premises when he introduces any part of his body or any part of any instrument, by whatever means, into or upon the premises.
§ 831. Robbery in the second degree
A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of force upon another person with intent to:
(1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or
(2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.
Robbery in the second degree is a class D felony.
§ 832. Robbery in the first degree
A person is guilty of robbery in the first degree when he commits the crime of robbery in the second degree and when, in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime:
(1) Causes physical injury to any person who is not a participant in the crime; or
(2) Is armed with a deadly weapon; or
(3) Is armed with and uses or threatens the use of a dangerous instrument.
Robbery in the first degree is a class B felony.
Nothwithstanding the provisions of § 4205 (b) and § 4214 of this Title, a person convicted a second or subsequent time for Robbery in the first degree shall be sentenced to a term of imprisonment for not less than ten nor more than thirty years and the Court shall not suspend the sentence of such person, nor give such person a probationary sentence, nor shall the term of imprisonment imposed under this section run concurrently with any other term of imprisonment imposed for the commission of such offense.
Subpart D
Theft and Related Offenses
§ 840. Shoplifting
establishment in which goods, wares or merchandise are displayed for sale, he
(1) Removes any such goods, wares or merchandise from the immediate use of display or from any other place within the establishment, with intent to appropriate the same to the use of the person so taking, or to deprive the owner of the use, the value of possession thereof without paying to the owner the value thereof; or
(2) Obtains possession of any goods, wares or merchandise by charging the same to any person without the authority of such person or to a fictitious person with a like intent; or
(3) Conceals any such goods, wares or merchandise with like intent; or
(4) Alters, removes or otherwise disfigures any label, price tag or marking upon any such goods, wares or merchandise with a like intent; or
(5) Transfers any goods, wares or merchandise from a container in which same shall be displayed or packaged to any other container with like intent.
(6) Uses any instrument whatsoever, credit slips, or chose in action to obtain any goods, wares, or merchandise with intent to appropriate the same to the use of the person so taking or to deprive the owner of the use, the value or the possession thereof without paying to the owner the value thereof.
(b) Any person willfully concealing unpurchased merchandise of any store or other mercantile establishment inside or outside the premises of such store or other mercantile establishment, shall be presumed to have so concealed such merchandise with the intention of converting the same to his own use without paying the purchase price thereof within the meaning of subsection
(a) Of this section, and the finding of such merchandise concealed upon the person or among the belongings of such person, outside of such store or other mercantile establishment shall be presumptive evidence of intentional concealment; and if
such person conceals or causes to be concealed such merchandise upon the person or among the belongings of another, the finding of the same shall also be presumptive evidence of intentional concealment on the part of the person so concealing such merchandise.
(c) A merchant, a store supervisor, agent or employee of the merchant over 21 years of age, who has probable cause for believing that a person has intentionally concealed unpurchased merchandise or has committed shoplifting as defined in subsection (a) of this section, may, for the purpose of summoning a law enforcement officer, take the person into custody and detain him in a reasonable manner on the premise for a reasonable time.
(d) A merchant, a store supervisor, agent or employee of the merchant over 21 years of age, who detains or causes the arrest of any person under the provisions of subsections (a), (b) or (c) of this section shall not be held civilly or criminally liable for such detention or arrest provided he had at the time of such detention or arrest probable cause to believe that the person committed the crime of shoplifting as defined in subsection (a) of this section.
Shoplifting is a class E felony when the goods, wares or merchandise shoplifted are of the value of $100 or more. When the goods, wares or merchandise shoplifted are of the value of less than $100 it is a class A misdemeanor.
A person is guilty of theft when he takes, exercises control over or obtains property of another person intending to deprive him of it or appropriate it. Theft includes the acts described in sections 842 through 846.
A person is guilty of theft if he, in any capacity legally receives, takes, exercises control over, or obtains property of another which is the subject of theft, and fraudulently converts same to his own use.
§ 842. Theft; lost or mislaid property; mistaken delivery
A person commits theft when, with the intent prescribed in section 841 of this Criminal Code, he exercises control over property of another person which he knows to have been lost or mislaid, or to have been delivered under a mistake as to the identity of the recipient or the nature or value of the property, without taking reasonable measures to return the property to its owner.
§ 843. Theft; false pretense
A person commits theft when, with the intent prescribed in section 841 of this Criminal Code, he obtains property of another person by intentionally creating or reinforcing a false impression as to a present or past fact, or by preventing the other person from acquiring information which would adversely affect his judgment of a transaction.
§ 844. Theft; false promise
A person commits theft when, with the intent prescribed in section 841 of this Criminal Code, he obtains property of another person by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when lie does not intend to engage in such conduct or, as the case may be, does not believe the third person intends to engage in such conduct. The accused's intention or belief that a promise would not be performed may not be established by or inferred from the fact along that the promise was not performed.
A person commits theft when, with the intent specified in section 841 of this Criminal Code he obtains services which he knows are available only for compensation by deception, threat, false token, false representation or statement or by installing, rearranging or tampering with any facility or equipment or by any other trick, contrivance or any other device to avoid payment for the services.
In any prosecution for theft involving theft of services the accused's intention not to pay., for the services may not be established by or inferred from the fact alone that he did not pay for them.
A person commits extortion when, with the intent prescribed in section 841 of this Criminal Code, he compels or induces another person to deliver property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the defendant or another will:
(1) Cause physical injury to anyone; or
(2) Cause damage to property; or
(3) Engage in other conduct constituting a crime; or
(4) Accuse anyone of a crime or cause criminal charges to be instituted against him; or
(0) Expose a secret or publicize an asserted fact, whether true or false, tending to subject anyone to hatred, contempt, or ridicule; or
(1) Falsely testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or
(0) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect same person adversely; or
(1) Perform any other act which is calculated to harm another person materially with respect to his health, safety, business, calling career, financial condition, reputation, or personal relationships.
Extortion is a class D felony.
§ 847. Theft, extortion; defenses
( I ) In any prosecution for theft or extortion it is an
affirmative defense that the property was appropriated by the actor under a claim of right, made in good faith, to do substantially what he did in the manner in which it was done.
(2) In any prosecution for extortion where the facts are as described in subsection 846 (4) of. this Criminal Code, it is an affirmative defense that the accused believed the threatened criminal charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of the threatened charge.
§ 848. Misapplication of property
A person is guilty of misapplication of property when, knowingly possessing personal property of another pursuant to an agreement that it will be returned to the owner at a future time, he sells, loans, leases, pledges, pawns, or otherwise encumbers the property without the consent of the owner thereof in such a manner as to create a risk that the owner will be unable to recover it or will suffer pecuniary loss.
Misapplication of property is a class A misdemeanor, unless the value of the property is $100 or more, in which case it is a class E felony.
§ 850. Possession of or dealing in a device for unlawfully taking telecommunication services
A person is guilty of possession of or dealing in a device for unlawfully taking telecommunication services when he makes, possesses, sells, advertises for sale, transfers or gives any instrument, apparatus or device designed, adapted or which can be used:
(1) For the commission of an unlawful taking of telecommunication service; or
(2) To conceal from any supplier of telecommunication service or from any lawful authority the existence or place or origin or destination of any telecommunication, under circumstances evincing an intent to use or knowledge that some other person intends to use the same in the commission of an offense of such character.
Possession of or dealing in a device for unlawfully taking telecommunication services is a Class A misdemeanor.
§ 851. Receiving stolen property
A person is guilty of receiving stolen property if he intentionally receives, retains, or disposes of property of another person with intent to deprive the owner of it or to appropriate it, knowing that it has been acquired under circumstances amounting to theft, or believing that it has been so acquired.
Receiving stolen property is a class A misdemeanor unless the value of the property received, retained, or disposed of is $100 or more, or unless the receiver has twice before been convicted of receiving stolen property, in which case it is a class E felony.
§ 0. Receiving stolen property; presumption of knowledge
Knowledge that property has been acquired under circumstances amounting to theft may be presumed in the case of a person who is a dealer in property of the sort received and acquires it for a consideration which he knows is substantially below its reasonable value.
§ 1. Unauthorized use of a vehicle
A person is guilty of unauthorized use of a vehicle when:
(1) Knowing that he does not have the consent of the owner he takes, operates, exercises control over, rides in, or otherwise uses a vehicle.
(2) Having custody of a vehicle pursuant to an agreement between himself or another and the owner thereof whereby he or another is to perform for compensation a specific service for the owner involving the maintenance, repair, or use of the vehicle, he intentionally uses or operates it, without the consent of the owner, for his own purposes in a manner constituting a gross deviation from the agreed purpose; or
(3) Having custody of a vehicle pursuant to an agreement with its owner whereby it is to be returned to the owner at a specified time, he intentionally retains or withholds possession
thereof, without the consent of the owner, for so lengthy a period beyond the specified time as to render the retention or possession a gross deviation from the agreement.
Unauthorized use of a vehicle is a class A misdemeanor.
§ 855. Theft; indictment and proof
(1) Every prosecution for theft shall be based upon section 841 of this Criminal Code.
(2) The defendant may be found guilty of theft if his conduct falls within any of the sections defining theft. Proof of any conduct constituting theft is sufficient to support an indictment or information charging theft, provided that the conduct proved is sufficiently related to the conduct charged that the accused is not unfairly surprised by the case he must meet.
§ 856. Theft and receiving stolen property; no defense; limitation on conviction
(1) In any prosecution for theft it is no defense that the accused is in fact guilty of receiving stolen property. He may be convicted of the crime which he has in fact committed.
(0) In any prosecution for receiving stolen property it is no defense that the accused is in fact guilty of theft. He may be convicted of the crime which he has in fact committed.
(1) A person may not be convicted of both theft and receiving stolen property with regard to property appropriated in the same transaction or series of transactions. He may be charged with the crime he seems most likely to have committed and may be convicted as provided in subsections (1) and (2) of this section.
§ 857. Theft and related offenses; definitions
For purposes of sections 841-856:
(1) "Deprive" means to withhold property of another person permanently or for so extended a period or under such circumstances as to withhold a major portion of its economic value
or benefit, or with intent to restore it only upon payment of a reward or other compensation; or to dispose of property of another person so as to make it unlikely that the owner will recover it.
(2) "Appropriate" means to exercise control, or to aid a third person to exercise control, over property of another person permanently or for so extended a period or under such circumstances as to acquire a major portion of its economic value or benefit; or to dispose of property for the benefit of the actor or a third person.
(3) "Obtain" means to bring about or receive a transfer or purported transfer of any interest in property, whether to the defendant or to another person.
(4) "Property" means anything of value except land, and includes things growing on, affixed to, or found in land such as topsoil, sand, minerals, gravel, and the like, documents although the rights represented thereby have no physical location, contract rights, choses in action and other interests in or claims to admission or transportation tickets, captured or domestic animals, food, drink, and electric or other power.
(5) "Property of another person" includes property in which any person other than the defendant has an interest which the defendant is not privileged to infringe, regardless of the fact that the defendant also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.
(6) "Dealer" means a person in the business of buying, selling, or lending on the security of goods.
(7) "Owner" means a person who has an interest in property which the defendant is not privileged to infringe, as described in subsection (5) above.
(8) "Services" include labor, professional service, transportation, telephone, gas, electricity, or other public service, accommodation in hotels, restaurants, or elsewhere, admission to exhibitions, and use of vehicles or other movable property.
Subpart E
Forgery and Related Offenses
(1) A person is guilty of forgery when, intending to defraud, deceive, or injure another person, or knowing that he is facilitating a fraud or injury to be perpetrated by anyone, he:
(a) Alters any written instrument of another person without his authority; or
(b) Makes, completes, executes, authenticates, issues, or transfers any written instrument which purports to be the act of another person, whether real or fictitious, who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no original existed.
() Possesses a written instrument, knowing that it was made, completed, or altered under circumstances constituting forgery.
(2) Forgery is classified and punished as follows:
(a) Forgery is forgery in the first degree if the written instrument is or purports to be:
(i) Part of an issue of money, stamps, securities, or other valuable instruments issued by ,a government or a governmental instrumentality; or
(ii) Part of an issue of stock, bonds, or other instruments representing interests in or claims against a corporation, business enterprise, or other organization or its property.
Forgery in the first degree is a class D felony.
(b) Forgery is forgery in the second degree if the written instrument is or purports to be:
(i) A deed, will, codicil contract release, assignment, commercial instrument, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status; or
(ii) A public record, or an instrument filed or required to be filed in or with a public office or public servant; or
(iii) A written instrument officially issued or created by a public office, public servant, or governmental instrumentality; or
(iv) Part of an issue of tokens, tickets, public transportation transfers, certificates, or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services; or
() A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device which a prescription is required by law.
Forgery in the second degree is a class E felony.
(c) All other forgery is forgery in the third degree, a class A misdemeanor.
§ 862. Possession of forgery devices
A person is guilty of possession of forgery devices when:
(1) He makes or possesses with knowledge of its character and intending to use it unlawfully any plate, die, or other device, apparatus, equipment, or article specifically designed for use in counterfeiting or otherwise forging written instruments; or
(2) He makes or possesses any device, apparatus, equipment, or article capable of or adaptable to use for purposes of forgery, intending to use it unlawfully.
Possession of forgery devices is a class E felony.
§ 863. Forgery and related offenses; definition
"Written instrument" means any instrument or article containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying, or recording information, or constituting a symbol or evidence of value,
right,
privilege, or identification.
Subpart F
Offenses Involving Falsification of Records
§ 871. Falsifying business records
A person is guilty of falsifying business records when, with intent to defraud; he:
(1) Makes or causes a false entry in the business records of
an
enterprise; or
(2) Alters, erases, obliterates, deletes, removes, or destroys a true entry in the business records of an enterprise; or
(3) Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imprisoned upon him by law or by the nature of his position; or
(4) Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.
Falsifying business records is a class A misdemeanor.
§ 872. Falsifying business records; defense
In any prosecution for falsifying business records it is an affirmative defense that the defendant was a clerk, bookkeeper, or other employee who, without personal benefit, merely executed the orders of his employer or of a superior officer or employee generally authorized to direct his activities.
§ 873. Tampering with public records in the second degree
A person is guilty of tampering with public records in the
second degree when, knowing that he does not have the authority of anyone entitled to grant it, he knowingly removes, mutilates, destroys, conceals, makes a false entry in, or falsely alters any record or other written instrument filed with, deposited in, or otherwise constituting a record of a public office or public servant.
Tampering with public records in the second degree is a class A misdemeanor.
§ 876. Tampering with public records in the first degree
A person is guilty of tampering with public records in the first degree when, with intent to defraud, and knowing that he does not have the authority of anyone entitled to grant it, he knowingly removes, mutilates, destroys, conceals, makes a false entry in, or falsely alters any record or other written instrument filed with, deposited in, or otherwise constituting a record of a public office or public servant.
Tampering with public records in the first degree is a class D felony.
§ 877. Offering a false instrument for filing
A person is guilty of offering a false instrument for filing when, knowing that a written instrument contains a false statement or false information, and intending to defraud the State, a political subdivision thereof, or another person, he offers or presents it to a public office or a public servant with the knowledge or belief that it will be filed with, registered or recorded in, or otherwise become a part of the records of the public office or public servant.
Offering a false instrument for filing is class A misdemeanor.
§ 878. Issuing a false certificate
A person is guilty of issuing a false certificate when, being a public servant authorized by law to make or issue official certificates or other official written instruments, and with intent to defraud, deceive, or injure another person, he issues such an instrument, or makes the same with intent that it be issued, knowing that it contains a false statement or false information.
Issuing a false certificate is a class E felony.
Subpart G
Bribery Not Involving Public Servants
A person is guilty of bribing when:
(1) He offers, confers, or agrees to confer any benefit upon any employee, agent, or fiduciary without the consent of the latter's employer or principal, with intent to influence him to take some action with regard to his employer's or principal's affairs which would not be warranted upon reasonable consideration of the factors which he should have taken into account; or
(2) He offers, confers, or agrees to confer any benefit upon duly appointed representative of a labor organization or duly appointed trustee or representative of an employee welfare trust fund, with intent to influence him in respect to any of his acts, decisions, or duties as a representative or trustee; or
(3) He offers, confers, or agrees to confer any benefit upon a participant in a sports contest, with intent to influence him not to give his best efforts in a sports contest; or
(4) He offers, confers, or agrees to confer any benefit upon an official in a sports contest, with intent to influence him to perform his duties improperly.
Bribing is a class A misdemeanor.
A person is guilty of bribe receiving if:
(I) Being an employee, agent, or fiduciary and, without the consent of his employer or principal, he solicits, accepts, or agrees to accept any benefit from another person upon an agreement or understanding that the benefit will influence him to take some action with regard to his employer's or principal's affairs which would not be warranted upon reasonable consideration of the factors which he should have taken into account; or
(2) Being a duly appointed representative of a labor organization or a duly appointed trustee or representative of an employee welfare trust fund, he solicits, accepts, or agrees to accept any benefit from another person upon an agreement or understanding that the benefit will influence him in respect to any of his acts, decisions, or duties as representative or trustee; or
(3) Being a participant in a sports contest, he solicits, accepts, or agrees to accept any benefit from another person upon an agreement or understanding that he will thereby be influenced not to give his best efforts in a sports contest; or
(4) Being an official in a sports contest, he solicits, accepts, or agrees to accept any benefit from another person upon an agreement or understanding that he will perform his duties improperly.
Bribe receiving is a class A misdemeanor.
Subpart H
Frauds on Creditors
§ 891. Defrauding secured creditors
A person is guilty of defrauding secured creditors if he destroys, removes, conceals, encumbers, transfers, or otherwise deals with property subject to a security interest, intending to defeat enforcement of that interest.
Defrauding secured creditors is a class A misdemeanor.
§ 892. Fraud in insolvency
A person is guilty of fraud in insolvency when, with intent to defraud any creditor and knowing that a receiver or other person entitled to administer property for the benefit of creditors has been appointed, or that any other composition or liquidation for the benefit of creditors has been made, he:
(1) Conveys, transfers, removes, conceals, destroys, encumbers, or otherwise disposes of any part of or any interest in the debtor's estate; or
(2) Obtains any substantial part of or interest in the debtor's estate; or
(3) Presents to any creditor or to the receiver or administrator any writing or record relating to the debtor's estate knowing the same to contain a false material statement; or
(4) Misrepresents or fails or refuses to disclose to the receiver or administrator the existence, amount, or location of any part of or any interest in the debtor's estate, or any other information which he is legally required to furnish to the administrator.
Fraud in insolvency is a class A misdemeanor. § 893. Interference with levied-upon property
A person is guilty of interference with levied-upon property when he hides, destroys, or removes from the county in which it is situated when levied upon or seized any property, which he knows has been levied upon or seized under execution, attachment process, or distress for rent.
Interference with levied-upon property is a class A misdemeanor.
Subpart I
Other Frauds and Cheats
§ 900. Issuing a bad check
A person is guilty of issuing a bad check when he issues or passes a check knowing that it will not be honored by the drawee. For the purpose of this section, as well as in any prosecution for theft committed by means of a bad check, it is prima facie evidence of knowledge that the check (other than a post-dated check) would not be honored that:
(1) The issuer had not account with the drawee at the time the check was issued; or
(2) Payment was refused by the drawee upon presentation because the issuer had insufficient funds or credit, and the issuer
failed to make good within 10 days after receiving notice of that refusal.
Issuing a bad check is a class A misdemeanor.
§ 901. Issuing a bad check; definitions
(1) "Issues." A person issues a check when, as drawer thereof or as a person who signs a check as drawer in a representative capacity or as agent of the person whose name appears thereon as the principal drawer or obligor, he delivers it or causes it to be delivered to a person who thereby acquires a right against the drawer with respect to the check. One who draws a check with intent that it be so delivered is deemed to have issued it if the delivery occurs.
(2) "Passes." A person passes a check when, being a payee, holder, or bearer of a check which previously has been or purports to have been drawn and issued by another, he delivers it, for a purpose other than collection to a third person who thereby acquire a right with respect thereto.
§ 902. Issuing a bad check; defense
In any prosecution for issuing a bad check, it is an affirmative defense that the accused, in acting as drawer in a representative capacity or as agent of the person whose name appears on the check as principal drawer or obligor, did so as an employee who, without personal benefit, merely executed the orders of his employer or of a superior officer or employee generally authorized to direct his activities.
§ 903. Unlawful use of credit
card
(a) A person is guilty of unlawful use of a credit card when he ,uses or knowingly permits or encourages another to use a credit card for the purpose of obtaining property or services knowing that:
(1) The card is stolen, forged or fictitious; or
(2) The card belongs to another person who has not authorized its use; or
(3) The card has been revoked or cancelled; or
(4) For any other reason his use of the card is unauthorized by the issuer.
(b) A person is guilty of unlawful use of a credit card where such person knowingly,
(1) makes, possesses, sells, gives or otherwise transfers to another, or offers or advertises a credit card with the intent that it be used or with the knowledge or reason to believe that it will be used to obtain property or services without payment of the lawful charges therefor; or
(2) publishes a credit card or code of an existing canceled, revoked, expired or nonexistent credit card, or the numbering or coding which is employed in the issuance of credit cards, with the intent that it be used or with knowledge or reason to believe that it will be used to avoid the payment of any property or services. As used in this section "publishes" means the communication of information to any one or more persons, either orally, in person or by telephone, radio or television, or in a writing of any kind, including without limitation a letter or memorandum, circular or handbill, newspaper or magazine article, or book.
Unlawful use of a credit card is a class A misdemeanor, unless the value of the property or services secured or sought to be secured by means of the credit card exceeds $100, in which case it is a class E felony.
Amounts involved in unlawful use of a credit card pursuant to one scheme or course of conduct, whether from the same issuer or several issuers, may be aggregated in determining whether such unlawful use constitutes a class A misdemeanor or a class E felony under this section.
A person may be prosecuted and convicted under this section in such county or counties within Delaware where the property or services giving rise to the prosecution were solicited, or where the property or services were received or were attempted to be received, or where the charges for the property or services were billable in the normal course of business.
§ 904. Unlawful use of credit card; definition
"Credit Card" means a writing, number or other evidence of an undertaking to pay for property or services delivered or rendered to or upon order of a designated person or bearer.
§ 905. Unlawful use of credit card; defense
In any prosecution for unauthorized use of a credit card under subsection 903 (4) of this Criminal Code it is an affirmative defense that the accused had the intention and ability to meet all obligations to the issuer arising out of his use of the card.
§ 906. Deceptive business practices
A person is guilty of deceptive business practices when in the course of business he knowingly or recklessly:
(1) Uses or possesses for use a false weight or measure, or any other device for falsely determining or recording any quality or quantity; or
(2) Sells, offers, or exposes for sale, or delivers less than the represented quantity of any commodity or service; or
(3) Takes or attempts to take more than the represented quantity of any commodity or service; or
(4) Sells, offers, or exposes for sale adulterated or mislabeled commodities. "Adulterated" means varying from the standard of composition or quality prescribed by or pursuant to any statute providing criminal penalties for such variance, or set by established commercial usage. "Mislabeled" means varying from the standard of truth or disclosure in labeling prescribed by or pursuant to any statute providing criminal penalties for such variance, or set by established commercial usage; or
(5) Makes a false or misleading statement in any advertisement addressed to the public or to a substantial segment thereof intending to promote the sale or increase the consumption of property or services; or
purpose of promoting the sale of securities, or omits information required by law to be disclosed in written documents relating to securities.
This section shall not apply to publishers, broadcasters, printers or other persons engaged in the dissemination of information or reproduction of printed or pictorial matter who publish, broadcast, or reproduce material without knowledge of its deceptive character.
Deceptive business practices is a class A misdemeanor.
§ 907. Criminal impersonation
A person is guilty of criminal impersonation when he:
(1) Impersonates another person and does an act in his assumed character intending to obtain a benefit or to injure of defraud another person; or
(2) Pretends to be a representative of some person or organization and does an act in his pretended capacity with intent to obtain a benefit or to injure or defraud another person; or
(3) Pretends to be a public servant, or wears or displays without authority any identification, uniform or badge by which a public servant is lawfully distinguished or identified.
Criminal impersonation is a Class A misdemeanor.
§ 908. Unlawfully concealing a will
A person is guilty of unlawfully concealing a will when, with intent to defraud, he conceals, secretes, suppresses, multilates or destroys a will, codicil, or other testamentary instrument.
Unlawfully concealing a will is a class E felony.
§ 909. Securing execution of documents by deception
A person is guilty of securing execution of documents by deception when, by knowingly misrepresenting the nature of the document, he causes another person to execute any instrument
affecting, purporting to affect, or likely to affect the pecuniary interest of any person.
Securing execution of documents by deception is a class A misdemeanor.
A person is guilty of debt adjusting if he makes a contract, either express or implied, with a particular debtor, whereby the debtor agrees to pay a certain amount of money periodically to the person engaged in the debt adjusting business who shall, for a consideration, distribute the same among certain specified creditors in accordance with a plan agreed upon.
The provisions of this section shall not apply to those situations involving debt adjusting incurred incidentally in the lawful practice of law in this State, nor shall anything in this section be construed to apply to any non-profit or charitable corporation or association which engages in debt adjusting even though the non-profit or association may charge and collect nominal sums as reimbursement for expenses in connection with such services.
Debt adjusting is a class B misdemeanor.
SUBCHAPTER IV
OFFENSES RELATING TO MARRIAGE
§ 1001. Bigamy
A person is guilty of bigamy when he contracts or purports to contract a marriage with another person knowing he has a living spouse, or knowing the other person has a living spouse.
Bigamy is a class E felony.
In any prosecution for bigamy it is a defense that, at the time of the allegedly bigamous marriage:
(1) The accused believed after diligent inquiry, that the prior spouse was dead; or
(2) The parties to the former marriage had been living apart for seven consecutive years throughout which the accused had no reasonable grounds to believe that the prior spouse was alive; or
(3) A Court in any American or foreign jurisdiction had entered a judgment purporting to terminate or annul any prior disqualifying marriage, and the accused did not know that judgment to be invalid; or
(4) The accused otherwise reasonably believed that he was legally eligible to remarry.
§ 1003. Bigamous marriage contracted outside the State
Whoever, being a resident of Delaware, goes out of the State and contracts a marriage contrary to section 1001 of this Criminal Code, intending to return and reside in Delaware, and returns accordingly, is guilty of bigamy.
§ 1004. Advertising marriage in another state
A person is guilty of advertising marriage in another State when he erects any sign or billboard, or publishes or distributes any material giving information relative to the performance of marriage in another State.
Advertising marriage in another State is a violation. In addition, a peace officer of this State may seize and destroy any sign, billboard, or material which he observes in violation of this section.
SUBCHAPTER V
OFFENSES RELATING TO
CHILDREN AND INCOMPETENTS
§ 1101. Abandonment of a child
A person is guilty of abandonment of a child when, being a parent, guardian, or other person legally charged with the care or custody of a child less than 16 years old, he deserts the child in any place intending permanently to abandon it.
Abandonment of a child is a class A misdemeanor.
§ 1102. Endangering the welfare of a child
A person is guilty of endangering the welfare of a child when:
(1) Being a parent, guardian, or other person legally charged with the care or custody of a child less than 18 years old he:
(a) Knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of the child; or
(b) Intentionally does or fails to do any act, with the result that the child becomes a neglected child; or
(2) He knowingly contributes to the delinquency of any child less than 18 years old by doing or failing to do any act, with the result, alone or in conjunction with other acts or circumstances, that the child becomes a delinquent child.
Endangering the welfare of a child is a class A misdemeanor.
§ 1103. Endangering the welfare of a child; definitions
(1) "Delinquent child" means any child who violates this Criminal Code or any other criminal law of this State, or who by reason of being wayward or habitually disobedient is uncontrolled by his parent, guardian, or custodian, or who is habitually truant from home or school, or who habitually so deports himself as to injure or endanger the morals or health of himself or others.
(2) "Neglected child" means any child who is abandoned by his parent, guardian, or custodian; or whose parent, guardian, or custodian cruelly abuses or intentionally neglects him or refuses to provide proper or necessary subsistence, education, or other care necessary for his health, morals, or well-being.
§ 1104. Endangering the welfare of a child; defense
In any prosecution for endangering the welfare of a child based upon an alleged failure or refusal to provide proper medical care or treatment to an ill child, it is an affirmative defense that the accused is a member or adherent of an organized church or
religious group the tenets of which prescribe prayer as the principal treatment for illness, and treated or caused the ill child to be treated in accordance with those tenets, provided that the accused may not avail himself of this defense when he has violated any laws relating to communicable or reportable diseases and to sanitary matters.
§ 1105. Endangering the welfare of an incompetent person
A person is guilty of endangering the welfare of an incompetent person when he knowingly acts in a manner likely to be injurious to the physical or mental welfare of a person who is unable to care for himself because of mental illness or defect.
Endangering the welfare of an incompetent person is a class A misdemeanor.
§ 1106. Unlawfully dealing with a child
A person in guilty of unlawfully dealing with a child when:
(1) He knowingly sells, causes to be sold, gives, purchases, or procures tobacco in any form to or for a child less than 17 years old, except that this subsection does not apply to the parent or guardian of the child; or
(2) He knowingly permits a child less than 18 years old to enter or remain in a place where unlawful sexual or narcotics or dangerous drugs activity is maintained or conducted; or
(3) He knowingly permits a child less than 18 years old to enter or remain in a place where gambling activity which is made unlawful by this Criminal Code is maintained or conducted.
(4) He being the proprietor or person in charge of any dance house, concert saloon, theater, museum or similar place of amusement where wines or spirituous or malt liquors are sold or given away, knowingly admits or permits to remain therein, any minor under the age of 18 years, unless accompanied by his parents or guardian.
Unlawfully dealing with a child is a class B misdemeanor.
§ 1107. Endangering children
A person is guilty of endangering children when he negligently abandons or leaves unattended in any place accessible to children any refrigerator, ice box, or similar airtight box or container which has a locking device inoperable from within, without first unhinging and removing the door or lid thereof or detaching the locking device from the door or lid. Nothing in this section prohibits the normal use of a refrigerator, ice box, or freezer for the storage of food.
Endangering children is a class C misdemeanor.
SUBCHAPTER VI
OFFENSES AGAINST PUBLIC ADMINISTRATION
Subpart A
Bribery and Improper Influence
§ 1201. Bribery
A person is guilty of bribery when:
(I) He offers, confers, or agrees to confer a personal benefit upon a public servant upon an agreement or understanding that the public servant's vote, opinion, judgment, action, decision, or exercise of discretion as a public servant will thereby be influenced; or
(2) He offers, confers, or agrees to confer a personal benefit upon a public servant or party officer upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office; or
(3) He offers, confers, or agrees to confer a personal benefit upon a public servant for having 'violated his duty as a public servant.
Bribery is a class 13 felony.
In any prosecution for bribery under subsection 1201 (1) of
this Criminal Code it is a defense that the accused offered, conferred, or agreed to confer the benefit upon the public servant as a result of conduct of the public servant constituting theft or coercion or an attempt to commit theft or coercion.
§ 1203. Receiving a bribe
(1) A public servant is guilty of receiving a bribe when he solicits, accepts, or agrees to accept a personal benefit from another person upon an agreement or understanding that his vote, opinion, judgement, action, decision, or exercise of discretion as a public servant will thereby be influenced.
(0) A public servant or party officer is guilty of receiving a bribe when he solicits, accepts, or agrees to accept personal benefit from another person upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office.
(1) A public servant is guilty of receiving a bribe when he solicits, accepts, or agrees to accept a personal benefit from another person for having violated his duty as a public servant.
Receiving a bribe is a class D felony.
§ 1204. Receiving a bribe; no defense
It is no defense to a prosecution for receiving a bribe that the conduct charged to constitute the offense also constitutes theft or coercion.
§ 1205. Giving unlawful gratuities
A person is guilty of giving unlawful gratuities when he knowingly offers, confers, or agrees to confer any personal benefit upon a public servant for engaging in official conduct which he is required or authorized to perform, and for which he is not entitled to any special or additional compensation.
Giving unlawful gratuities is a class A misdemeanor.
§ 1206. Receiving unlawful gratuities
A public servant is guilty of receiving unlawful gratuities when he solicits, accepts, or agrees to accept any personal benefit for engaging in official conduct which he is required or authorized to perform, and for which he is not entitled to any special or additional compensation.
Receiving unlawful gratuities is a class A misdemeanor.
§ 1207. Improper influence
A person is guilty of improper influence when:
(1) He threatens unlawful harm to any person with intent to influence his decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party officer, or voter; or
(2) Threatens unlawful harm to any public servant or party officer with intent to influence him to violate his duty as a public servant or party officer.
Improper influence is a class A misdemeanor.
§ 1208. Improper
influence, no defense
It is no defense to a prosecution for improper influence that a person whom the accused sought to influence was not qualified to act in the desired way, whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.
§ 1209. Definitions relating to bribery and improper influence
As used in sections 1201 and 1208 of this Criminal Code:
(1) "Personal benefit" means gain or advantage to the recipient personally or anything regarded by him as such gain or advantage, including gain or advantage conferred on his behalf or at his request upon another person in whose welfare he is interested but not a gain or advantage promised generally to a group or class of voters as a consequence of public measures which a candidate engages to support or oppose;
(2) "Harm" means loss, disadvantage, or injury, or anything so regarded by the person affected, including loss, disadvantage, or injury to any other person in whose welfare he is interested;
(3) "Party officer" means a person who holds any position or office in a political party, whether by election, appointment, or otherwise;
(4) "Public servant" means any officer or employee of the State or any political subdivision thereof, including legislators and judges, and any person participating as juror, advisor, or consultant in performing a governmental function; but the term does not include witnesses.
Subpart B
Abuse of Office
§ 1211. Official misconduct
A public servant is guilty of official misconduct when, intending to obtain a personal benefit or to cause harm to another person:
(1) He commits an act constituting an unauthorized exercise of his official functions, knowing that the act is unauthorized; or
(2) He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office; or
(3) He performs his official functions in a way intended to benefit his own property or financial interests under circumstances in which his actions would not have been reasonably justified in consideration of the factors which he ought to have taken into account in performing his functions.
Official misconduct is a class A misdemeanor.
§ 1212. Profiteering
A public servant is guilty of profiteering when, in contemplation of official action by himself or by a governmental
unity with which he is associated, or in reliance on information to which he has access in his official capacity and which has not been made public:
(I) He acquires a pecuniary interest in any property, transaction, or enterprise which may be affected by the official action or information; or
(2) He speculates or wagers on the basis of the official action or information; or
(3) He aids another person to do any of the foregoing acts, intending to gain thereby a personal benefit.
Profiteering is a class A misdemeanor.
§ 1213. Definitions relating to abuse of office
In sections 1211 and 1212 of this Criminal Code, the definitions given in section 1209 of this Criminal Code apply.
Subpart C
Perjury and Related Offenses
§ 1221. Perjury in the third degree
A person is guilty of perjury in the third degree when he swears falsely.
Perjury in the third degree is a class A misdemeanor.
§ 1222. Perjury in the second degree
A person is guilty of perjury in the second degree when he swears falsely and when his false statement is:
(1) Made in a written instrument for which an oath is required by law; and
(2) Made with intent to mislead a public servant in the performance of his official functions; and
(3) Material to the action, proceeding, or matter involved.
Perjury in the second degree is a Class E felony.
§ 1223. Perjury in the first degree
A person is guilty of perjury in the first degree when he swears falsely and when his false statement consists of testimony and is material to the action, proceedings, or matter in which it is made.
Perjury in the first degree is a class C felony.
§ 1224. Definition of "swears falsely"
A person "swears falsely" when he intentionally makes a false statement or affirms the truth of a false statement previously made, knowing it to be false or not believing to be true, while giving testimony or under oath in a written instrument. A false swearing in a written instrument is not complete until the instrument is delivered by its maker, or by someone acting in his behalf, to another person with intent that it be uttered or published as true.
§ 1225. Perjury; pleading and proof when inconsistent statements are involved
When a person has made two statements under oath which are inconsistent to the degree that one of them is necessarily false, and the circumstances are such that each statement, if false, is perjurious, the inability of the prosecution to establish specifically which of the two statements is the false one does not preclude a prosecution for perjury. The prosecution may be conducted as follows:
(1) The indictment or information may set forth the two statements and, without designating either, charge that one of them is false and perjurious.
(2) The falsity of one or the other of the two statements may be established by proof of their irreconcilable inconsistency. Such proof is sufficient to establish a pima facie case of falsity.
(3) If perjury of different degrees would be established by the making of the two statements, hypothetically assuming that
each is false and perjurious, the defendant may be convicted of the lesser degree at most.
In any prosecution for perjury, it is an affirmative defense that the accused retracted his false statement in the course of the proceeding in which it was made before the false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed.
§ 1232. Perjury; no defense
It is no defense to a prosecution for perjury that:
(1) The accused was not competent under the relevant rules of evidence to make the false statement alleged; or
(2) The accused mistakenly believed the false statement to be immaterial; or
(3) The oath was administered or taken in an irregular manner; or
(4) A document purporting to be made upon oath and uttered or published as so made by the accused, was not in fact made under oath; or
(5) The court in which the acts constituting the offense were committed lacked jurisdiction over the person of the accused or over the subject matter.
§ 1233. Making a false written statement
A person is guilty of making a false written statement when he makes a false statement which he knows to be false or does not believe to be true in a written instrument bearing a notice, authorized by law, to the effect that false statements therein are punishable.
Making a false written statement is a class A misdemeanor.
§ 1234. Perjury, making a false written statement; corroboration
In any prosecution for perjury or making a false written statement, falsity of a statement may not be established by the uncorroborated testimony of a single witness. Corroboration may be made by circumstantial evidence.
§ 1235. Perjury and related offenses; definitions
(1) "Oath" includes an affirmation and every other mode authorized by law of attesting the truth of that which is stated.
(2) "Swear" means to state under oath.
(3) "Testimony" means an oral statement made under oath in a proceeding before any court, body, agency, public servant, or other person authorized to conduct the proceeding and to administer the oath or cause it to be administered.
(4) "Oath required by law." An affidavit, deposition, or other written instrument is one for which an oath is required by law when, absent on oath, it does not or would not, according to statute or appropriate regulatory provisions, have legal efficacy in a court of law or before any public or governmental body, agency, or public servant to whom it is or might be submitted.
(5) "Material." A statement is "material" when, regardless of its admissibility under the rules of evidence, it could have affected the course or outcome of the proceeding.
(6) "Public servant" has the meaning given in subsection 1209 (4) of this Criminal Code.
Subpart D
Offense Involving Obstruction of
Governmental Operations
§ 1241. Refusing to aid a police officer
A person is guilty of refusing to aid a police officer when, upon command by a police officer identifiable or identified by him as such, he unreasonably fails or refuses to aid the police
officer in effecting an arrest, or in preventing the commission by another person of any offense.
Refusing to aid a police officer is a class B misdemeanor.
§ 1242. Aiding a police officer; civil liability
A person who complies with section 1241 by aiding a police officer, upon command, to effect an arrest or prevent the commission of an offense, shall not be held liable to any person for any damages resulting therefrom, provided that he employs means which would have been employed by a reasonable man under the circumstances known to him at the time.
§ 1243. Obstructing firefighting operations
A person is guilty of obstructing firefighting operations when he intentionally and unreasonably obstructs the efforts of any fireman in extinguishing a fire, or prevents or dissuades another person from extinguishing or helping to extinguish a fire.
Obstructing firefighting operations is a class A misdemeanor.
§ 1244. Hindering prosecution
A person is guilty of hindering prosecution when, with intent to prevent, hinder, or delay the discovery of apprehension of, or the lodging of a criminal charge against, a person who he knows has committed acts constituting a crime, or is being sought by law enforcement officers for the commission of a crime, he:
(1) Harbors or conceals the person; or
(2) Warns the person of impending discovery or apprehension; or
(3) Provides the person with money, transportation, weapon, disguise, or other means of avoiding discovery or apprehension; or
(4) Prevents or obstructs, by means of force, intimidation, or deception, anyone from performing an act which might aid in
the discovery or apprehension of the person or in the lodging of a criminal charge against him; or
(5) Suppresses, by an act of concealment, alternation, or destruction, any physical evidence which might aid in the discovery or apprehension of the person or in the lodging of a criminal charge against him; or
(6) Aids the person to protect or profit expeditiously from an advantage derived from his crime.
Hindering prosecution is a class A misdemeanor.
§ 1245. Falsely reporting an incident
A person is guilty of falsely reporting an incident when, knowing the information reported, conveyed, or circulated is false or baseless, he:
(1) Initiates or circulates a false report or warning of or impending occurrence of a fire, explosion, crime, catastrophe, or emergency under circumstances in which it is likely that public alarm or inconvenience will result; or
(2) Reports, by word or action, to any official or quasiofficial agency or organization having the function of dealing with emergencies involving danger to life or property an alleged occurrence or impending occurrence of a fire, explosion, or other catastrophe or emergency which did not in fact occur or does not in fact exist; or
(3) Reports to a law enforcement officer or agency:
(a) The alleged occurrence of an offense or incident which did not in fact occur; or
(b) An allegedly impending occurrence of an offense or incident which is not in fact about to occur; or
(c) False information relating to an actual offense or incident or to the alleged implication of some person therein.
Falsely reporting an incident is a class B misdemeanor.
§ 1246. Compounding a crime
A person is guilty of compounding a crime when:
(1) He solicits, accepts, or agrees to accept any benefit from a person upon any representation or pretense that criminal prosecution of such person shall be dropped, withheld or abandoned, or the sentence thereon reduced, or upon any promise to assert pretended influence to cause such criminal prosecution to be dropped, withheld or abandoned, or the sentence thereon, reduced,
(2) He offers, confers, or agrees to confer any benefit upon another person upon an agreement or understanding that the other person will refrain from initiating a prosecution for a crime.
Compounding a crime is a class A misdemeanor. § 1247. Compounding a crime, defense
In any prosecution for compounding a crime, it is an affirmative defense that the benefit did not exceed the amount which the accused believed to be due as restitution or indemnification for harm caused by the crime.
Subpart E
Escape and Other
Offenses Relating to Custody
§ 1251. Escape in the third degree
A person is guilty of escape in the third degree when he escapes from custody.
Escape in the third degree is a class A misdemeanor.
§ 1252. Escape in the second degree
A person is guilty of escape in the second degree when he escapes from a detention facility or from the custody of the Department of Correction.
Escape in the second degree is a class E felony.
§ 1253. Escape after conviction
A person shall be guilty of escape after conviction if such person, after entering a plea of guilty or having been convicted by the Court, escapes from a detention facility or from the custody of the Department of Correction.
Escape after conviction shall be a class D felony; provided however, that if the defendant uses force or the threat of force against another person or has a deadly weapon in his possession at the time of escape, it shall be a class C felony. If the defendant inflicts injury upon another person during the escape or from the time of escape until such person is again in custody, it shall be a class B felony. Any sentence imposed upon conviction of escape after conviction shall not run concurrently with any other sentence.
§ 1256. Promoting prison contraband
A person is guilty of promoting prison contraband when:
(1) He knowingly and unlawfully introduces any contraband into a detention facility; or
(2) Being a person confined in a detention facility, he knowingly and unlawfully makes, obtains, or possesses any contraband.
Promoting prison contraband is a class A misdemeanor except that if the prison contraband is a deadly weapon, it is class D felony.
A person is guilty of resisting arrest when lie intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention of himself or another person or intentionally flees from a peace officer who is effecting an arrest.
Resisting arrest is a class A misdemeanor.
§ 1258. Escape and offense relating to custody; definitions
As used in sections 1251 and 1257 of this Criminal Code:
(1) "Detention facility" means any place used for the confinement of a person.
(a) Charged with or convicted of an offense; or
(b) Charged with being a delinquent child as defined in 10 Delaware Code, § 901, or
(c) Held for extradition or as a material witness; or
(d) Otherwise confined pursuant to an order of a court.
(2) "Custody" means restraint by a public servant pursuant to an arrest, detention, or an order of a court.
(3) "Contraband" means any intoxicating liquor or drug prohibited under Chapter 47 of Title 16, Delaware Code, except as prescribed by a physician for medical treatment, any money without the knowledge or consent of the Department of Health and Social Services, any deadly weapon or part thereof, or any instrument or article which may be used to effect an escape.
(4) "Escape" means departure from the place in which the actor is held or detained with knowledge that such departure is unpermitted.
Subpart F
Offenses Relating to Judicial
and Similar Proceedings
§ 1261. Bribing a witness
A person is guilty of bribing a witness when he offers, confers, or agrees to confer, any benefit upon a witness or a person about to be called as a witness in any official proceeding upon an agreement or understanding that:
(1) The testimony of the witness will thereby be influenced,
(2) The witness will absent himself from, or otherwise avoid
or seek to avoid appearing or testifying at, the official proceeding.
Bribing a witness is a class D felony.
§ 1262. Bribe receiving by a witness
A witness or a person about to be called as a witness in any official proceeding is guilty of bribe receiving by a witness when he solicits, accepts, or agrees to accept any benefit from another person upon an agreement or understanding that:
(1) His testimony will thereby be influenced; or
(2) He will absent himself from, or otherwise avoid or seek to avoid appearing or testifying at, the official proceeding.
Bribe receiving by a witness is a class D felony.
§ 1263. Tampering with a witness
A person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an official proceeding:
(1) He induces or attempts to induce the person to absent himself from or otherwise to avoid or seek to avoid appearing or testifying at the official proceeding with the intent to influence the outcome thereof; or
(2) He knowingly makes any false statement or practices any fraud or deceit with intent to affect the testimony of the person.
Tampering with a witness is a class A misdemeanor.
§ 1264. Bribing a juror
A person is guilty of bribing a juror when he offers, confers, or agrees to confer, any benefit upon a juror upon an agreement or understanding that the juror's vote, opinion, judgment, decision, or other action as a juror will thereby be influenced.
Bribing a juror is a class D felony.
§ 1265. Bribe receiving by a juror
A juror is guilty of bribe receiving by a juror when he solicits, accepts, or agrees to accept any benefit from another person upon agreement or understanding that his vote, opinion, judgment, decision or other action as a juror will thereby be influenced.
Bribe receiving by a juror is a class D felony.
§ 1266. Tampering with a juror
A person is guilty of tampering with a juror when, with intent to influence the outcome of an official proceeding, he communicates with a juror in the proceeding, except as permitted by the rules of evidence governing the proceeding.
Tampering with a juror is a class A misdemeanor.
§ 1267. Misconduct by a juror
A juror is guilty of misconduct by a juror when, in relation to an official proceeding pending or about to be brought before him, he agrees to give a vote, opinion, judgment, decision, or report for or against any party to the action or proceeding.
Misconduct by a juror is a class A misdemeanor.
§ 1268. Tampering with a juror, misconduct by a juror; exception
Nothing in sections 1266 or 1267 of this Criminal Code applies to communications between jurors in the same proceeding with regard to matters admitted as evidence in the proceeding.
§ 1269. Tampering with physical evidence
A person is guilty of tampering with physical evidence when:
(1) Intending that it be used or introduced in an official proceeding or a prospective official proceeding he
(a) Knowingly makes, devices, alters, or prepares false physical evidence; or
(b) Produces or offers false physical evidence at a proceeding, knowing it to be false; or
(2) Believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent its production or use, he suppresses it by any act of concealment, alteration, or destruction, or by employing force, intimidation, or deception against any person.
Tampering with physical evidence is a class E felony.
§ 1271. Criminal contempt
A person is guilty of criminal contempt when he engages in any of the following conduct:
(I) Disorderly, contemptous, or insolent behavior, committed during the sitting of a Court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority; or
(2) Breach of the peace, noise, or other disturbance directly tending to interrupt a Court's proceedings; or
(3) Intentional disobedience or resistance to the process, injunction, or other mandate of a Court; or
(4) Contumacious refusal to be sworn as a witness in any Court proceeding or, after being sworn, to answer any proper inerrogatory; or
(5) Knowingly publishing a false or grossly inaccurate report of a Court's proceedings; or
(6) Intentional refusal to serve as a juror; or
(7) Intentional and unexcused failure by a juror to attend a trial at which he has been chosen to serve as a juror; or
(8) Intentional failure to appear personally on the required date, having been released from custody, with or without bail, by court order or by other lawful authority, upon condition that he will subsequently appear personally in connection with a criminal action or proceeding.
Criminal Contempt is a class A misdemeanor, except for violations of subsection (1) of this section. A violation of subsection (I) of this Section shall be a class B misdemeanor.
§ 1272. Criminal contempt; summary punishment
A person who commits criminal contempt as defined by subsection 1271 (I) of this Criminal Code may in the discretion of the Court be convicted and sentenced for that offense without further criminal proceedings during or immediately after the termination of the proceeding in which the act constituting criminal contempt occurred.
§ 1273. Unlawful grand jury disclosure
A person is guilty of unlawful grand jury disclosure when being a grand juror, a public prosecutor, a grand jury stenographer, a grand jury interpreter, a peace officer guarding a witness in a grand jury proceeding, or clerk, attendant, warden, or other public servant having official duties in or about a grand jury room or proceeding, he intentionally disclosures to another person the nature or substance of any grand jury testimony, or any decision, result, or other matter attending a grand jury proceeding which is required by law to kept secret, except in the proper discharge of his official duties or upon written order of the court.
Unlawful grand jury disclosure is a class B misdemeanor.
§ 1274. Offense relating to judicial and similar proceedings; definitions
As used in sections 1261 — 1 273 of this Criminal Code:
(I) "Benefit" means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including benefit to any other person in whose welfare he is interested.
(2) "Physical evidence" means any article, object, document, record, or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding.
(3) "Official proceeding" includes any action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence or testimony of witnesses may properly be received.
SUBCHAPTER VII
OFFENSES AGAINST PUBLIC HEALTH, ORDER,
AND DECENCY
Subpart A
Riot, Disorderly Conduct, and Related Offenses
§ 1301. Disorderly conduct
A person is guilty of disorderly conduct when:
(I) He intentionally causes public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by:
(a) Engaging in fighting or in violent, tumultuous, or threatening behavior; or
(b) Making an unreasonable noise or an offensively coarse utterance, gesture, or display, or addressing abusive language to any person present; or
(c) Disturbing any lawful assembly or meeting of persons without lawful authority; or
(d) He obstructs vehicular or pedestrial traffic; or
(e) He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
() Creating a hazardous or physically offense condition which serves no legitimate purpose; or
(2) He engages with at least one other person in a course
of disorderly conduct as defined in subsection (I) of this section which is likely to cause substantial harm or serious inconvenience, annoyance, or alarm, and refuses or knowingly fails to obey an order to disperse made by a peace officer to the participants.
Disorderly conduct is a class B misdemeanor.
§ .1302. Riot
A person is guilty of riot when he participates with two or more persons in a course of disorderly conduct:
(I) With intent to commit or facilitate the commission of a felony or misdemeanor; or
(2) With intent to prevent or coerce official action; or
(3) When the accused or any other participant to the knowledge of the accused uses or plans to use a firearm or other deadly weapon.
Any other provision of this Criminal Code notwithstanding, whoever violates the provisions of this section shall be guilty of a class D felony.
Any other provision of this Criminal Code or Title 10, Delaware Code, notwithstanding, any person over sixteen (16) years old who violates the provisions of this section shall be prosecuted as an adult.
A person is guilty of harassment when, with intent to harass, annoy or alarm another person:
(I) He insults, taunts, or challenges another person or engages in any other course of alarming or distressing conduct in a manner which he knows is likely to provoke a violent or disorderly response; or
(2) Communicates with a person by telephone, telegraph, mail, or any other form of written communication in a manner which he knows is likely to cause annoyance or alarm including,
but not limited to, intrastate telephone calls initiated by vendors for the purpose of selling goods or services; or
(3) Knowingly permits any telephone under his control to be used for a purpose prohibited by this section.
Harrassment is a violation.
§ 1312. Aggravated harassment
A person is guilty of aggravated harassment when:
(1) In the course of a telephone call he uses obscene, profane or vulgar language or language suggesting that the recipient of the call engage with him or another person in sexual relations of any sort, knowing that he is thereby likely to cause annoyance or alarm to the recipient of the call; or
(2) He makes repeated or anonymous telephone calls to another person, whether or not conversation ensues, knowing that he is thereby likely to cause annoyance or alarm; or
(3) Knowingly permits any telephone under his control to be used for a purpose prohibited by this section.
Aggravated harassment is a class B misdemeanor.
§ 1313. Malicious obstruction of emergency telephone calls
(a) As used in this section —
"Party line" means a subscriber's line telephone circuit, consisting of two or more main telephone stations connected therewith, each station with a distinctive ring or telephone number.
"Emergency telephone call" means a telephone call for fire, police, medical or ambulance assistance where property or human life is in jeopardy and the prompt summoning of aid is essential.
(b) Any person who willfully refuses immediately to relinquish a party line when informed that the line is needed for an emergency telephone call is guilty of malicious obstruction of an emergency telephone call.
Malicious obstruction of emergency telephone calls is a class B misdemeanor.
§ 1315. Public intoxication
A person is guilty of public intoxication when he appears in a public place manifestly under the influence of alcohol or narcotics or any other drug not administered or prescribed to be taken by a physician, to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.
Public intoxication is a violation, unless the accused has been convicted of public intoxication twice before within one (1) year, in which the case the offense is a class C misdemeanor.
§ 1320. Loitering on property of a State supported school, college or university
A person is guilty of loitering on property of a State supported school, college or university when he loiters or remains in or about the buildings or grounds of a school, college or university supported in whole or in part with State funds, not having any reason or relationship involving custody of or responsibility for a pupil or student, or any other specific, legitimate reason for being there, and not having written permission from anyone authorized to grant the same.
Any law enforcement officer, State official or employee, the owner or occupier of such lands or property, his agent or employee, or any other person or persons whom he or any of them may call to their or his assistance, may arrest such loiterer, either with or without warrant, either upon the premises or in immediate flight therefrom and, if with warrant, then at any place.
Loitering on property of a State supported school, college or university is a violation.
A person is guilty of loitering when:
(1) He fails to refuses to move or when lawfully ordered to do so by any police officer; or
(2) He stands, sits idling or loiters upon any pavement, sidewalk, or crosswalk, or stands or sits in a group, or congregates with others, on any pavement, sidewalk, crosswalk, or doorstep, in any street or way open to the public in this State so as to obstruct or hinder the free and convenient passage of persons walking, riding or driving over or along such pavement, walk, street or way, and shall fail to make way, remove or pass, after reasonable request from any person; or
(3) He loiters or remains in or about a school building or grounds, not having reason or relationship involving custody of or responsibility for a pupil or any other specific or legitimate reason for being there, unless he has written permission from the principal; or
(4) He loiters, remains, or wanders about in a public place for the purpose of begging; or
(5) He loiters or remains in a public place for the purpose of engaging or soliciting another person to engage in sexual intercourse or deviate sexual intercourse; or
(6) He loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Unless flight by the accused or other circumstance make it impracticable, a peace officer shall, prior to any arrest for an offense under this subsection, afford the accused an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this subsection if the peace officer did not comply with the preceding sentence, or if it appears that the explanation given by the accused was true and, if believed by the peace officer at the time, would have dispelled the alarm.
Loitering is a violation.
§ 1322. Criminal nuisance
A person is guilty of criminal nuisance when:
(1) By conduct either unlawful in itself or unreasonable
under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of others; or
(2) He knowingly conducts or maintains any premises, place, or resort where persons gather for purposes of engaging in unlawful conduct.
Criminal nuisance is a class B misdemeanor. § 1323. Obstructing public passages
A person is guilty of obstructing public passages when alone or with other persons and having no legal privilege to do so, he intentionally or recklessly renders any public passage unreasonably inconvenient or hazardous to use, or he willfully enters upon or tampers with or obstructs any public utility right of way.
Obstructing a public passage is a violation.
§ 1324. Obstructing ingress or egress to public buildings
A person is guilty of obstructing ingress to or egress from public buildings when he knowingly prevents any person from passing through any entrance or exit to a public building, except that this section shall not apply to lawful picketing or to picketing for any lawful union objective.
Obstructing ingress or egress to public buildings is a class C misdemeanor.
§ 1325. Cruelty to animals
A person is guilty of cruelty to animals when he intentionally or recklessly:
(1) Subjects any animal to cruel mistreatment; or
(2) Subjects any animal in his custody to cruel neglect; or
(3) Kills or injures any animal belonging to another person without legal privilege or consent of the owner.
Subsections (1) and (2) are inapplicable to accepted veterinary practices and activities carried on for scientific research.
Cruelty to animals is a class A misdemeanor.
§ 1331. Desecration
A person is guilty of desecration if he intentionally defaces, damages, pollutes, or otherwise physically mistreats any public monument or structure, any place of worship or burial, the national flag, or any other object of veneration by the public or a substantial segment thereof, in a public place and in a way in which the actor knows will outrage the sensibilities of persons likely to observe or discover his actions.
Desecration is a class A misdemeanor.
§ 1332. Abusing a corpse
A person is guilty of abusing a corpse when, except as authorized by law, he treats a corpse in a way that a reasonable man knows would outrage ordinary family sensibilities.
Abusing a corpse is a class A misdemeanor.
§ 1335. Violation of privacy
A person is guilty of violation of privacy when, except as authorized by law, he:
(1) Trespasses on property intending to subject anyone to eavesdropping or other surveillance in a private place; or
(2) Installs in any private place, without consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in that place, or uses any such unauthorized installation; or
(3) Installs or uses outside a private place any device for hearing, recording, amplifying, or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy there; or
(4) Intercepts without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation; or
(5) Divulges without the consent of the sender and the receiver the existence or contents of any message by telephone, telegraph, letter, or other means of communicating privately if the accused knows that the message was unlawfully intercepted, or if he learned of the message in the course of employment with an agency engaged in transmitting it.
(6) This section does not apply to:
(a) Overhearing of messages through a regularly installed instrument on a telephone party line or an extension or any other regularly installed instrument or equipment; or
(b) Acts done by the Telephone Company or subscribers incident to the enforcement of Telephone Company regulations or subscriber rules relating to the use of facilities; or
(c) Acts done by personnel of any telephone or telegraph carrier in the performance of their duties in connection with the construction, maintenance or operation of a telephone or telegraph system; or
(d) The divulgence of the existence of any message in response to a subpoena issued by a court of competent jurisdiction or a governmental body having subpoena powers; or
(e) Acts done by police officers as provided in Section 1336 and 1431 of this title.
Violation of privacy is a class A misdemeanor.
§ 1337. Definitions relating to riot, disorderly conduct, and related offenses
(1) "Public place" means a place to which the public or a substantial group of persons has access and, includes highways, transportation facilities, schools, places of amusement, parks, playgrounds, prisons, and hallways, lobbies, and other portions of
apartment houses and hotels not constituting rooms or apartments designed for actual residence.
(2) "Private place" means a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access.
§ 1338. Bombs, incendiary devices, Molotov cocktails and explosive devices
(a) For purposes of this section the following definitions shall be made applicable:
"Molotov cocktail" means a makeshift incendiary bomb made of a breakable container filled with flammable liquid and provided with a wick composed of any substance capable of bringing flame into contact with the liquid.
"Incendiary device" means any item designed to ignite with by hand, chemical reaction or by spontaneous combustion and is not designed for any lawful purpose or use whatsoever or any lawful purpose or use has been or is terminated.
(b) Whoever manufactures, transfers, uses, possesses or transports any bomb, incendiary device, Molotov cocktail or device designed to explode or produce uncontained combustion with intent to cause bodily harm or damage to any property or thing shall be guilty of a class C felony.
() Any provision of this Criminal Code notwithstanding, any person over 16 years old who violates the provisions of this section shall be prosecuted as an adult.
(a) In any prosecution under this section, it is prima facie evidence of intent to cause bodily harm or damage to any property or thing if the accused had possession of the device prescribed by this section.
Subpart B
Offenses Involving Public Indecency
A person is guilty of lewdness when he does any lewd act in any public place or any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.
Lewdness is a class B misdemeanor.
§ 1342. Prostitution
A person is guilty of prostitution when he engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
Prostitution is a class B misdemeanor.
§ 1343. Patronizing a prostitute
A person is guilty of patronizing a prostitute when:
(1) Pursuant to a prior agreement or understanding, he pays a fee to another person as compensation for that person's having engaged in sexual conduct with him; or
(2) He pays or agrees to pay a fee to another person pursuant to an agreement or understanding that in return therefore that person or a third person will engage in sexual conduct with him; or
(3) He solicits or requests another person to engage in sexual conduct with him in return for a fee.
Patronizing a prostitute is a violation.
§ 1344. Prostitution and patronizing a prostitute; no defense
In any prosecution for prostitution it is no defense that the persons were of the same sex, or that the person who received, agreed to receive, or solicited a fee was a male and the person who paid, agreed, or offered to pay the fee was a female.
§ 1351. Promoting prostitution in the third degree
A person is guilty of promoting prostitution in the third degree when he knowingly advances or profits from prostitution.
Promoting prostitution in the third degree is a class A misdemeanor.
§ 1352. Promoting prostitution in the second degree
A person is guilty of promoting prostitution in the second degree when he knowingly:
(1) Advances or profits from prostitution by managing, supervising, controlling, or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes; or
(2) Advances or profits from prostitution of a person less than 18 years old.
Promoting prostitution in the second degree is a class E felony.
§ 1353. Promoting prostitution in the first degree
A person is guilty of promoting prostitution in the first degree when he knowingly:
(1) Advances prostitution by compelling a person by force or intimidation to engage in prostitution or profits from such coercive conduct by another; or
(2) Advances or profits from prostitution of a person less than 16 years old.
Promoting prostitution in the first degree is a class C felony.
§ 1354. Promoting prostitution; attempt to promote prostitution; corroboration
A person shall not be convicted of promoting prostitution or
of an attempt to promote prostitution solely on the uncorroborated testimony of a person whose prostitution activity he is alleged to have advanced or attempted to advance, or from whose prostitution activity he is alleged to have profited or attempted to profit.
§ 1355. Permitting prostitution
A person is guilty of permitting prostitution when, having possession or control of premises which he knows are being used for prostitution purposes, he fails to halt or abate such use within a reasonable period of time.
Permitting prostitution is a class B misdemeanor.
§ 1356. Offenses involving public indecency; definitions
As used in Sections 1342 through 1355 of this Criminal Code:
(1) "Sexual conduct" means any act designed to produce sexual gratification to either party. It is not limited to intercourse or deviate sexual intercourse.
(2) "Advance prostitution." A person advances prostitution when, acting other than as a prostitute or as a patron thereof, he knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.
(3) "Profit from prostitution." A person profits from prostitution when, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of prostitution activity.
A person is guilty of obscenity when he knowingly or recklessly:
(1) Sells, delivers, or provides, or offers or agrees to sell, deliver, or provide, any obscene picture, writing, record, or other representation or embodiment of the obscene; or
(2) Presents or directs an obscene play, dance, or performance, or participates in that portion thereof which makes it obscene; or
(3) Publishes, exhibits, or otherwise makes available any obscene material; or
(4) Possesses any obscene material for purposes of sale or other commercial dissemination.
Obscenity is a class A misdemeanor. § 1362. Obscenity; defenses
In any prosecution for obscenity it is an affirmative defense that dissemination was restricted to:
(1) Institutions or persons having scientific, educational, governmental, or other similar justification for possessing obscene material; or
(2) Non-commercial dissemination to personal associates of the accused who are known by the accused not to object the receipt of such material.
§ 1363. Obscenity; presumption
A person who disseminates or possesses obscene material in the course of his business is presumed to do so knowingly or recklessly.
§ 1364. Definition of "obscene"
Material is obscene if it has no redeeming social value and, considered as a whole, its predominant appeal is to prurient, shameful, or morbid interest in nudity, sex, excretion, sadism or masochism and it goes substantially beyond customary limits of candor in describing or presenting such matters. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material Or the circumstances of its dissemination to be designed for children or some other specially susceptible audience.
§ 1365. Obscene literature harmful to minors
(a) Definitions as used in this section:
(1) "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse which predominately appeals to the prurient, shameful, or morbid interest of minors and is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and is substantially without redeeming social value for minors.
(0) "Knows" means (i) knowledge that the character and content of any material described in Section 1365 (i) (1) is harmful to minors; or (ii) knowledge of facts that would lead a reasonable man to inquire whether the character and content of any material described in Section 1365 (i) (1) is harmful to minors, or (iii) knowledge or information that the material described herein has been adjudged to be harmful to minors in a proceeding instituted pursuant to Section 1365 (b) or (i) or is the subject of a pending proceeding instituted pursuant to Section 435 (b) or (i).
(1) "Minor" means any person under the age of seventeen years.
(2) "Known minor" is any person known, in fact, to be under the age of eighteen years, or any person, in fact, under the age of eighteen years unless a reasonable, bona fide attempt has been made to ascertain the age of that minor.
(5) "Nudity" means the showing of the human male or female genitals, public area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.
(6) "Sado-masochistic abuse" means flagellation or torture practiced by or upon a person clad in undergarments, a mask, or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
(7) "Sexual conduct" means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed genitals or public area or a female person's breast.
(8) "Sexual excitement" means the condition of human male or female genitals in a state of sexual stimulation or arousal.
(b) Whenever the Attorney General of this State has reasonable cause to believe that any person is or may become engaged in any of the acts described in Section 1365 (i)(1), (2) or (4) the Attorney General shall institute an action in the Court of Chancery for the county where such act is or will be performed for adjudication of the question of whether such material is harmful to minors.
(c) The action authorized by Section 1365 (b) shall be commenced by the filing of a complaint to which shall be attached as an exhibit a true copy of the allegedly harmful material. The complaint shall: (i) be directed against such material by name or description; (ii) allege that such material is harmful to 'minors; (iii) designate as respondents and list the names and addresses, if known, or any person in this State engaged or about to be engaged in any of the acts described in Section 1365 (i)(1), (2) or (4) with respect to such material; (iv) seek an adjudication that such material is harmful to minors; and (v) seek a permanent injunction against any respondent prohibiting him from performing any of the acts described in Section 1365 (i) (1), (2) or (4).
(d) Upon the filing of the complaint described in Section 1365 (c), the Attorney General shall present the same, together with the material attached thereto, as soon as practicable to the
court for its examination and reading. If after such examination and reading the court finds no probable cause to believe such material to be harmful to minors, the court shall cause an endorsement to that effect to be placed and dated upon the complaint and shall thereupon dismiss the action. If after such examination and reading the court finds probable cause to believe such material to be harmful to minors, the court shall cause an endorsement to that effect to be placed and dated upon the complaint whereupon it shall be the responsibility of the Attorney General promptly to request the Register in Chancery to issue summons and to furnish to the Register in Chancery such number of copies of such complaint and endorsement as are needed for the service of summons. Service of such summons and endorsed complaint shall be made upon the respondents thereto in any matter provided by law.
(e) The author, publisher or any person interested in sending or causing to be sent, bringing or causing to be brought, into this State for sale or commercial distribution, or any person in this State preparing, selling, exhibiting or commercially distributing, or possessing with intent to sell or commercially distribute or exhibit, the material exhibited to the endorsed complaint, may appear and may intervene in accordance with the Rules of the Court of Chancery. If no person appears and files an answer, or moves to intervene within the time set by the Rule or by an Order of the Court of Chancery, the Court may forthwith adjudge whether the material so exhibited to the endorsed complaint is harmful to minors and enter an appropriate final judgment.
(I) The public policy of this State requires that all proceedings prescribed in this Section, other than criminal actions under Section 1365(i), be heard and disposed of with the maximum promptness and dispatch commensurate with constitutional requirements, including due process, freedom of the press and freedom of speech. The Rules of the Court of Chancery shall be applicable, except as they may be modified by this Section. Any party or intervenor shall be entitled, upon request, to a trial of any issue with an advisory jury and the court, with the consent of all parties, may order a trial of any issue with a jury whose verdict shall have the same effect as in cases of law. In any action in which an injunction is sought under this Section, any respondent or intervenor shall be entitled to a trial of the issues within one day, exclusive of Saturday, Sunday and
Holidays, after joinder of issue, and a decision shall be rendered by the court or jury, as the case may be, within two days, exclusive of Saturday, Sunday and Holidays, of the conclusion of the trial. If the issues are being tried before a jury and the jury shall not be able to render a decision within two days of the conclusion of the trial, then notwithstanding any other provision of this Section, the jury shall be dismissed and a decision shall be rendered by the court within two days of the conclusion of the trial. In the event that the court or jury, as the case may be, finds the material exhibited to the complaint not to be harmful to minors, the court shall enter judgment accordingly and shall dismiss the complaint. In the event that the court or jury, as the case may be, finds the material exhibited to the complaint to be harmful to minors, the court shall enter judgment to such effect and may, in such judgment or in subsequent orders of enforcement thereof, enter a permanent injunction against any respondent prohibiting him engaging in any of the acts described in Section 1365(i)(1), (2) or (4).
(g) If the court, pursuant to Section 1365 (d), finds probable cause to believe the exhibited material to be harmful to minors, and so endorses the complaint, the court may, upon the motion of the Attorney General and in accordance with the Chancery Court Rules issue a temporary restraining order against any respondent prohibiting him from selling, commercially distributing or giving away such material to minors or from permitting minors to inspect such material. No temporary restraining order shall be granted without notice to the respondents unless it clearly appears from specific facts shown by affidavit or by the verified complaint that one or more of the respondents are engaged in the sale of material harmful to minors and that immediate and irreparable injury to the morals and general welfare of minors in this State will result before notice can be served and a hearing had thereon. All proceedings for temporary restraining order and preliminary injunction shall be governed by the Rules of the Court of Chancery.
(h) Any respondent, or any officer, agent, servant, employee or attorney of such respondent, or any person in active concert or participation by contract or arrangement with such respondent, who receives actual notice, by personal service or otherwise, of any injunction or restraining order entered pursuant to Section 1365 (f) or (g), and who shall disobey any of the
provisions thereof, shall be guilty of contempt of court and upon conviction shall be guilty of a class A misdemeanor.
(i) Any person is guilty of a class A misdemeanor who:
(1) Exhibits for sale, sells, displays, transfers, gives gratis, loans, rents, or advertises to a known minor any book, pamphlet, magazine or printed matter, however reproduced, or sound recording, or picture, photograph, drawing, sculpture, motion picture film, or similar visual representation that such persons knows to be in whole or in part harmful to minors.
(2) Sells, gives gratis, or transfers an admission ticket or pass to a known minor or admits a known minor to a premise whereon there is exhibited a motion picture, show, or other presentation which, in whole or in part, such persons knows to be harmful to minors.
(3) Misrepresents his age as seventeen years or older for the purpose of evading the restrictions of Section 1365.
(4) Exhibits for sale, sells, displays, gives gratis, transfers, loans, or rents any matter enumerated in Section 1365(i) (1) that such person knows to be harmful to minors which does not prominently include in such advertisement that words 'unlawful to persons under seventeen years of age'.
(j) No criminal proceeding shall be commenced against any person pursuant to the provisions of Section 1365 (i) (1), (2) or (4) unless, prior to the act which is the subject of such proceeding, such person (i) had written notice from the Attorney General that the material which is the subject of such proceeding has been adjudged harmful to minors pursuant to the provisions of this Section 1365 (b) or (i), or (ii) has been subject to an order entered pursuant to Section 1365 (b) relating to the material which is the subject of such criminal proceeding, or any other material harmful to minors.
(k) No person shall be subject to prosecution pursuant to the provisions of Section 1365, (i) for any sale to a minor where such person had reasonable cause to believe that the minor involved was seventeen years old or more, and such minor exhibited to such person a draft card, driver's license, birth
certificate or other official or apparently official document purporting to establish that such minor was seventeen years old or more, or (ii) for any sale where a minor is accompanied by a parent or guardian, or accompanied by an adult and such person has no reason to suspect that the adult accompanying the minor is not the minor's parent or guardian; or (iii) where such person is a bona fide school, museum or public library or is acting in his capacity as an employee of such organization or as a retail outlet affiliated with and serving the educational purposes of such organization.
(1) In order to provide for the uniform application of this Section to all minors within this State, it is intended that the sole and only regulation of the matters herein discussed shall be under this Section, and no municipality, county or other governmental unit within this State shall make any law, ordinance or regulation relating to the subject matter hereof as to minors. All such laws, ordinances and regulations, as they affect minors, whether enacted before or after this Section shall become void, unenforceable and of no effect upon the effective date of this Section; provided, however, that such prior laws, ordinances and regulations shall govern litigations commenced prior to the effective date of this Section and shall continue in effect solely for that purpose.
(m) This section may be known and cited as Delaware Law on the Protection of Minors from Harmful Materials, and may be referred to by that designation.
Subpart D
Offenses Involving Gambling
§ 1401. Advancing gambling in the second degree
A person is guilty of advancing gambling in the second degree when:
(1) He sells or disposes of, or has in his possession with intent to sell or dispose of, a lottery policy, certificate, or any other thing by which he or another person or persons, promises or promise, guarantees or guarantee that any particular number, series of numbers, character, ticket, or certificate, shall, in the event or on the happening of any contingency in the nature of a
lottery entitled the purchaser or holder to receive money, property or evidence of debt; or
(2) He uses or employs any other device by which such person, or any other person, promises or guarantees as provided in subsection (1) of this section; or
(3) He is concerned in interest in lottery policy writing, or in selling or disposing of any lottery policy, certificate, number or numbers or any other thing by which he or another person or persons, promises or promise, guarantees or guarantee that any particular number or numbers, character, ticket, or certificate shall, in the event or on the happening of any contingency in the nature of a lottery entitle the purchaser or holder to receive money, property or evidence of debt; or
(4) He uses or employs any other device by which such person or any other person promises or guarantees as provided in subsection (3) of this section.
Advancing gambling in the second degree is a class A misdemeanor.
§ 1402. Foreign lotteries; prima facie evidence
(a) A person is guilty in engaging in a foreign lottery when he brings, sends or procures to be brought or sent into this State any scheme of any lottery or any drawing of any such scheme or any ticket or part of a ticket or certificate of or a substitute for any ticket or part of a ticket, and sells or offers for sale any such ticket or part of ticket, on any certificate or substitute for a certificate, and circulates in any manner any scheme or any drawing.
(b) On the trial of any person under subsection (a) of this section any lottery scheme drawing, ticket, certificate of or a substitute for a ticket, or parts of tickets, shall be proved to have been by the accused brought or procured to be brought, or sent or procured to be sent into this State, or printed or procured to be printed within this State, for the purpose of circulating the same by mail or otherwise, shall be prima facie evidence within the description of this section. Engaging in foreign lotteries is a class A misdemeanor.
§ 1403. Advancing gambling in the first degree
A person is guilty of advancing gambling in the first degree when:
(1) He keeps, exhibits, or uses, or is concerned in interest in keeping, exhibiting, or using any book, device, apparatus, or paraphernalia for the purpose of receiving, recording or registering bets or wagers upon the result of any trial or contest, wherever conducted, of skill, speed, or power of endurance of man or beast; or
(2) Being the owner, lessee, or occupant of a room, house, building, enclosure, or place of any kind, he keeps, exhibits, uses or employs therein or permits or allows to be kept, exhibited, used or employed therein, or is concerned in interest in keeping, exhibiting, using or employing therein any book, device, apparatus, or paraphernalia for the purpose of receiving, recording, or registering bets or wagers as provided in subsection (1) of this section, or of forwarding in any manner money, thing or consideration of value for the purpose of being bet or wagered as provided in subsection (1) of this section; or
(3) He records or registers bets or wagers, or receives, contracts or agrees to receive money or anything of value for the purpose or with the intent to bet or wager for himself or another person as provided in subsection (1) of this section; or
(4) He directly or indirectly 'bets or wagers, or promises to bet or wager, money or anything of value as provided in subsection (I) of this section.
This section does not apply to a bet or wager made on a horse race within the enclosure of any race meeting licensed and conducted under the laws of this State, and made by or through the means of a pari-mutual or totalizator pool, the conduct of which is licensed by the Delaware Racing Commission or other State licensing agency. Such exception need not be negatived in any indictment or information.
Advancing gambling in the first degree is a class A misdemeanor.
§ 1404. Providing premises for gambling; contributing thereto
A person is guilty of providing premises for gambling when:
(I) He lets, demises or transfers to another person any building, structure, room or rooms knowing that the same will be used for the purpose of committing any gambling offense; or
(2) He knowingly permits any house, structure, building, room or rooms of which he has possession or control to be used for the purpose of committing any gambling offense; or
(3) He contributes to the support and maintenance of any house or place where gambling is carried on or conducted; or
(4) He keeps or maintains any house or place where gambling is carried on.
Providing premises for gambling or contributing thereto is a class B misdemeanor, unless the accused has been convicted, within the previous 5 years, of the same offense or of an offense under Title 1 I , Sections 663 or 665 of the Delaware Code as the same existed prior to the effective date of this Criminal Code, in which case it is a class A misdemeanor.
§ 1405. Possessing a gambling device
A person is guilty of possessing a gambling device when he knowingly manufactures, sells, transports, keeps, exhibits, manages, places, possesses, or conducts or negotiates any transaction affecting or designed to effect ownership, custody, or use of a slot machine or any other gambling device.
Possessing a gambling device is a class A misdemeanor.
§ 1406. Being concerned in interest in keeping any gambling device
A person is guilty of being concerned in interest in keeping any gambling device when:
which cards, dice or any other game of chance is played for money, or other thing of value, or other gambling device of any kind whatsoever; or
(2) He, with the intent that it shall be kept of exhibited for use by the public, buys, sells or distributes a gaming table, faro bank, sweat cloth or other gambling device.
(3) He is a partner or concerned in interest in the keeping or exhibiting a gambling table, faro bank, sweat cloth or other gambling device.
Being concerned in interest in keeping any gambling device is a class A misdemeanor.
§ 1407. Engaging in a crap game
A person is guilty of engaging in a crap game when he takes part in or is knowingly present at the form of gambling commonly known as crap, in which money or other valuable thing is played for by means of dice.
Engaging in a crap game is a violation. § 1408. Gambling; exception
The provisions of sections 1401 through 1405 of this Criminal Code are inapplicable to any plan for stimulating public interest in, or sale of, merchandise, services, or exhibitions unless the plan requires that the chance to win a prize be paid for in money or something of actual pecuniary value or that some items be bought.
§ 1409. Exemption of law enforcement officer
Nothing in Subpart D of Subchapter VII of this Criminal Code shall apply to any law enforcement officer or his agent while acting in the lawful performance of his duty.
§ 1411. Unlawfully disseminating gambling information
A person is guilty of unlawfully disseminating gambling information when:
(1) Being a public utility it knowingly furnishes to another person a private wire for use in disseminating information in furtherance of gambling or for gambling purposes; or
(2) He knowingly uses a private wire in disseminating or receiving information in furtherance of gambling or for gambling purposes; or
(3) He engages in the business of or receives compensation in any form for disseminating or receiving information in furtherance of gambling or for gambling purposes by means of a private wire or a call service.
Unlawfully disseminating gambling information is a class A misdemeanor.
§ 1412. Revocation of service contracts or denial of application for service; exemption from liability
(1) The Attorney General, if he has reasonable cause to believe that any service furnished by a public utility is being used or will be used to disseminate information in furtherance of gambling or for gambling purposes, may give notice to the person who has contracted with or is applying to the public utility for such service that he intends to seek a Court order that the service contract be revoked or the application for service be denied.
(0) The notice permitted in subsection (I) of this section shall be served personally upon the person who has contracted with or is applying to the public utility for the service. If personal service is not reasonably possible, the notice may be in a conspicuous place on the premises to which the service is furnished. The notice shall specify the time and place where the hearing will be held, and the Court before which it will be held.
(1) A hearing shall be held in the Superior Court at the time specified in the notice. At the hearing, evidence bearing on the use of the public utility service in question may be presented by the State and by or on behalf of the person who has contracted for or is applying for the service.
(2) If the Court, after hearing, determines that there is probable cause to believe that the service furnished by the public
utility is being used or will be used to disseminate information in furtherance of gambling or for gambling purposes, it shall order that the contract to furnish the service be revoked or that the application for service be denied.
(5) No public utility shall be held liable at law or in equity for revocation of a contract, or denying an application for service, when ordered to do so as provided by this section.
§ 1421. Obstructions; service of notice
If the Attorney General finds that access to a building, apartment, or place which he has reasonable cause to believe is resorted to for the purpose of gambling in violation of the laws of this State, is barred by an obstruction, he shall cause to be served in the manner provided by law for service of civil summons upon the occupant or owner a notice to appear before the Superior Court and to show cause why the unusual obstructions should not be removed.
§ 1422. Posting of notice
If the occupant or owner cannot be found, the prescribed notice shall be posted upon the outside of the premises.
§ 1423. Contents of notice
The notice which is served personally upon the occupant or owner or is posted upon the outside of the premises shall in all cases designate the name of the Court in which the rule will be heard, and shall further contain the time and the date upon which the rule will be brought on for hearing.
At the time stated in the notice, a hearing shall be held in the Superior Court. At the hearing, evidence bearing on the matter may be presented by the State and by or on behalf of the person served with the notice or alleged to be the occupant or owner of the premises. The Court may grant a continuance if it is reasonably necessary in order that all relevant evidence may be heard.
§ 1425. Findings of court; order for removal
If the Court, after a hearing upon the requisite matters, finds that there is probable cause to believe that the premises are resorted to for the purpose of gambling and that access is barred by an obstruction, the Court shall order the occupant or owner to remove the obstruction.
§ 1426. Official removal upon noncompliance with removal order
In the event that the obstructions are not removed with a period of 7 days after the order for removal, the Attorney General shall cause the obstructions to be removed from the premises or place.
§ 1427. Collection of removal expenses; status of contractor; amount of lien
The expenses of a removal under section 1426 of this Criminal Code shall be collected by the Attorney General in the manner provided by law for the filing and collection of a mechanic's lien.
§ 1428. Maintaining an obstruction
A person is guilty of maintaining an obstruction when, being the owner or occupant of a building or other place from which an obstruction has been removed as provided in sections 1421 —1427 of this Criminal Code he again erects or permits the erection of an obstruction.
Maintaining an obstruction is a violation, unless the accused has been convicted of the same offense within the previous 2 years, in which case it is a class A misdemeanor. This section does not limit the power of the State to seek the removal of the obstruction as provided in sections 1421 — 1427 of this Criminal Code.
§ 1431. Gambling; evidence
received or overheard telephone messages intended for the accused for an associate of the accused which tend to prove that gambling activity was being conducted, is admissible. The gathering and disclosure of such evidence, including the contents of the telephone messages received or overheard, does not violate any law of this State.
§ 1432. Gambling; definitions
(1) "Gambling device" means any device, machine, paraphernalia, or equipment which is used or usable in the playing phases of any gambling activity, whether the activity consists of gambling between persons or gambling by a person involving the playing of a machine. Lottery tickets, policy slips, and other items used in the playing phases of lottery and policy schemes are not gambling devices.
(2) "Slot machine" means a gambling device which, as a result of the insertion of a coin or other object, operates, either completely automatically or with the aid of a physical act by the player, in such manner that, depending upon elements of chance, it may eject something of value.
(3) "Gambling offense" means any offense defined in sections 1401 through 1431 of this Criminal Code.
(4) "Call Service" means the furnishing of information upon request therefor or by prearrangement over general telegraphic, telephonic or teletypewriter exchange or toll service.
(5) "Dissemination" means the act of transmitting, distributing, advising, spreading, communicating, conveying or making known.
(6) "Private wire" means service equipment, facilities, conducts, poles, wires, circuits, systems by means of which service is furnished for communication purposes, either through the medium of telephone, telegraph, Morse, teletypewriter, loudspeaker or any other means, or by which the voice or electrical impulses are sent over a wire, and which services are contracted for or leased for services between two or more points specifically designated, and are not connected to or available for general telegraphic, telephonic or teletypewriter exchange or toll service,
and includes such services known as "special contract leased wire service," "leased line," "private line", "private system", "Morse line", "private wire", but does not include the usual and customary telephone or teletypewriter service by which the subscriber may be connected at each separate call to any other telephone or teletypewriter designated by him only through the general telephone or teletypewriter exchange system or toll service.
(7) "Public utility" means a person, partnership, association or corporation, owning or operating in this State equipment or facilities for conveying or transmitting messages or communications by telephone or telegraph to the public for compensation.
(8) "Obstruction" means a door, window, shutter, screen bar, or grating of unusual strength, or any unnecessary number of doors, windows, or obstructions other than what is usual and ordinary in the normal or usual use of a building, apartment, or place, by which access to any building, apartment, or place is barred.
Subpart E
Offenses Involving Deadly
Weapons and Dangerous Instruments
§ 1441. License to carry concealed deadly weapons
(1) A person of full age and good moral character, desiring to be licensed to carry a concealed deadly weapon for the protection of his person or property, may be licensed to do so when the following conditions have been strictly complied with:
(a) He shall make application therefor in writing and file the same with the Prothonotary of the proper county, at least 15 days before the then next term of the Superior Court, clearly stating that he is a person of full age; that he is desirous of being licensed to carry a concealed deadly weapon for the protection of his person or property, or both, also stating his residence and occupation;
certificate of five respectable citizens of the election district in which the applicant resides at the time of filing his application. The certificate shall clearly state that the applicant is a person of full age, sobriety and good moral character, that he bears a good reputation for peace and good order in the community in which he resides, and that the carrying of a concealed deadly weapon by the applicant is necessary for the protection of the applicant or his property, or both. The certificate shall be signed with the proper signatures and in the proper handwriting of each such respectable citizens;
(c) Every such applicant shall file in the office of the Prothonotary of the proper county his application verified by his oath or affirmation in writing taken before an officer authorized by the laws of this State to administer the same, and shall under such verification state that his certificate and recommendation were read to or by the signers thereof and that the signatures thereto are in the proper and genuine handwriting of each;
(d) At the time he files his application he shall pay to the Prothonotary the full tax for the license, and also a fee of $1 to the Prothonotary for issuing the same, together with his proportionate share of the cost of advertising the notice of making his application.
(e) On or before the date of expiration of such license, the licensee, without further application, may renew the same for the further period of one year upon payment to the Prothonotary of the license tax and fee, and upon filing with said Prothonotary an affidavit setting forth that the carrying of a concealed deadly weapon by the licensee is necessary for the protection of himself or his property, or both, and that he possesses all the requirements for the issuance of a license, and may make like renewal each and every year thereafter; provided, however, that the Superior Court upon good cause presented to it may inquire into the renewal request and deny the same for good cause shown.
(2) The Prothonotary of the county in which any applicant for a license files the same, shall cause notice of every such application to be published once, at least ten days before the next tenn of the Superior Court. The publication shall be made in a newspaper of general circulation published in the county. In making such publication it shall be sufficient for the Prothonotary
to do the same as a list in alphabetical form stating therein simply the name and residence of each applicant respectively.
(3) The Prothonotary of the county in which the application for license is made shall lay before the Superior Court, at its then next term, all applications for licenses, together with the certificate and recommendation accompanying the same, filed in his office, on the first day of such application.
(4) The Court may or may not, in its discretion, approve any application, and in order to satisfy the Judges thereof fully in regard to the propriety of approving the same, may receive remonstrances and hear evidence and arguments for and against the same, and establish general rules for that purpose.
(5) If any application is approved, as provided in this section, the Court shall endorse the word "Approved" thereon and sign the same with the date of approval. If not approved, the Court shall endorse thereon, the words "Not Approved" and sign the same. The Prothonotary, immediately after any such application has been so approved, shall issue a proper license, signed as other State licenses are, to the applicant for the purposes provided in this section and for a term to expire on the first day of June next succeeding the date of such approval.
(6) The price or fee to the State for every such license is $2. The Secretary of State shall prepare blank forms of license to carry out the purposes of this section, and shall issue the same as required to the several Prothonotaries of the counties of this State.
(0) The provisions of this section do not apply to the carrying of the usual weapon by the police or other peace officers.
§ 1442. Carrying a concealed deadly weapon
A person is guilty of carrying a concealed deadly weapon when he carries concealed a deadly weapon upon or about his person without a license to do so as provided by section 1441 of this Criminal Code.
Carrying a concealed deadly weapon is a class D felony.
§ 1443. Carrying a concealed dangerous instrument
(a) A person is guilty of carrying a concealed dangerous instrument when he carries concealed a dangerous instrument upon or about his person.
(b) It shall be a defense that the defendant was carrying the concealed dangerous instrument for a specific lawful purpose and that the defendant had no intention of causing any physical injury or threatening the same.
Carrying a concealed dangerous instrument is a class E felony.
§ 1444. Possessing a destructive weapon
A person is guilty of possessing a destructive weapon when he sells, transfers, buys, receives, or has possession of a bomb, bombshell, firearm silencer, sawed-off shotgun, machine gun, or any other firearm or weapon which is adaptable for use as a machine gun, or any other firearm or weapon which is adaptable for use as a machine gun.
Possessing a destructive weapon is a class D felony. This section does not apply to members of the military forces or to members of a police force in this State duly authorized to carry a weapon of the type described; nor shall the provisions contained herein apply to persons possessing machine guns for scientific or experimental research and development purposes, which machine guns have been duly registered under the provisions of the National Firearms Act of 1968.
§ 1445. Unlawfully dealing with a dangerous weapon
A person is guilty of unlawfully dealing with a dangerous weapon when:
(1) He possesses, sells, or in any manner has control of:
(a) A weapon which by compressed air or by spring discharges or projects a pellet, slug, or bullet, except a B.B.; or air rifle which does not discharge or project a pellet or slug larger than a B.B. shot; or
(b) A pellet, slug, or bullet, intending that it be used in any weapon prohibited by paragraph (1)(a) of this section; or
(2) He sells, gives, or otherwise transfers to a child under 16 years of age a firearm or a B.B. or air rifle, or spear gun, or B.B. shot; or
(3) Being a parent, he permits his child under 16 years of age to have possession of a firearm or a B.B. or air rifle or spear gun unless under the direct supervision of an adult.
Unlawfully dealing with a dangerous weapon is a class B misdemeanor.
§ 1446. Unlawfully dealing with a switchblade knife
A person is guilty of unlawfully dealing with a switchblade knife when he sells, offers for sale, or has in his possession a knife, the blade of which is released by a spring mechanism or by gravity.
Unlawfully dealing with a switchblade knife is a class B misdemeanor.
§ 1447. Possession of a deadly weapon during commission of a felony
(a) A person who is in possession of a deadly weapon during the commission of a felony is guilty of possession of a deadly weapon during commission of a felony.
Possession of a deadly weapon during commission of a felony is a class B felony.
(b) The minimum sentence of imprisonment required by subsection (a) of the section and § 4205 of this Title, shall not be subject to suspension and no person convicted under this section shall be eligible for probation or parole during the first 5 years of this sentence.
(c) Every person charged under this section over the age of 16 years shall be tried as an adult, notwithstanding any contrary provision of statutes governing the respective Family Courts or any other State law.
§ 1448. Purchase and possession of deadly weapons by certain persons prohibited
Any person, having been convicted in this State or elsewhere of a felony or a crime of violence involving bodily injury to another, whether or not armed with, or having in his possession any weapon during the commission of such felony or crime of violence, or any person who has ever been committed for a mental disorder to any hospital, mental institution or sanatorium (unless he possesses a certificate of a medical doctor or psychiatrist licensed in this State that he is no longer suffering from a mental disorder which interferes with or handicaps him in the handling of a firearm), or any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug, or central nervous system depressant or stimulant drug as those terms were defined prior to the effective date of the Uniform Controlled Substance Act in January 1973, or of a narcotic drug or controlled substance as defined in Chapter 47, Title 16, Delaware Code, who purchases, owns, possesses, or controls any deadly weapon is guilty of a class E felony."
Section 2. Title 11, Part H, of the Delaware Code, is amended by repealing the following sections therein: Section 1904, Section 1905, Section 270.1, Section 2731, Section 2733, Section 2734, Section 2735, Section 2901, Section 2902, Section 2903, Section 3504, Section 3506, Section 3701, Section 3702, Section 3703, Section 3704, Section 3705, Section 3706, Section 3707, Section 3708, Section 3709, Section 3901, Section 3905, Section 3906, Section 3907, Section 3908, Section 3909, Section 3910, Section 3911, Section 3912, Section 4332, Section 4701, Section 4702, Section 4703, Title 11, Delaware Code. Part HI is amended by repealing the following sections: Section 5903, Section 5904 and Section 5907.
And further to enact certain sections of Part II, Title 11, Chapter 27, and to enact a new Chapter being Chapter 42, Part II, of Title 11, Delaware Code, said amendments to read from beginning to end as follows:
§ 2701. Original jurisdiction
been committed. They shall have such jurisdiction over misdemeanors alleged to have been committed only when it is expressly conferred by law. Such jurisdiction, unless otherwise expressly provided by law, shall be throughout the State.
(b) The Court of Common Pleas for New Castle County shall have original jurisdiction to hear, try, and finally determine all misdemeanors and violations alleged to have been committed in New Castle County outside the City of Wilmington, except where jurisdiction over such offenses is vested exclusively in another court. The jurisdiction conferred by this subsection includes concurrent jurisdiction with the Justices of the Peace in all cases in which the Justices of the Peace have jurisdiction.
(c) The Court of Common Pleas for Kent County shall have original and exclusive jurisdiction to hear, try, and finally determine all misdemeanors and violations alleged to have been committed in Kent County, except where jurisdiction over such offenses is vested exclusively in another court.
The Municipal Court for the City of Wilmington shall have jurisdiction to hear, try, and finally determine all misdemeanors and violations alleged to have been committed in the City of Wilmington, except where jurisdiction over such offenses is vested exclusively in another Court. The Municipal Court shall have sole original jurisdiction to inquire of, hear, try, and finally determine all offenses committed within the City against any of the laws, ordinances, regulations, or charter of the City. The jurisdiction conferred by this subsection includes concurrent jurisdiction with the Justices of the Peace in all cases in which the Justices have jurisdiction.
() The Superior Court shall have jurisdiction, original and concurrent, over all crimes, except where jurisdiction is exclusively vested in another Court.
(a) The Family Court of the State of Delaware shall have such criminal jurisdiction, exclusive or concurrent, as is expressly conferred upon it by law.
(b) The jurisdiction conferred by this section to hear, try, and finally determine prosecutions of a crime or offense includes the power to issue all process and to conduct such proceedings as
may be necessary or appropriate for the complete exercise of such jurisdiction.
(g) The Court of Common Pleas for Sussex County shall have original and exclusive jurisdiction to hear, try, and finally determine all misdemeanors and violations alleged to have been committed in Sussex County except where jurisdiction over such offenses is vested exclusively in another court.
§ 2702. Jurisdiction of Justice of the Peace Courts of offenses contained in this Criminal Code
The Justices of the Peace shall have original jurisdiction to hear, try and finally determine the following misdemeanors and any attempt to commit the following misdemeanors:
(1) § 601 (offensive touching);
(3) § 811 (criminal mischief) only if punishable as a misdemeanor;
(4) § 822 (criminal trespass in the second degree);
(5) § 841 (theft) only if punishable as a misdemeanor;
(6) § 840 (shoplifting) only if punishable as a misdemeanor;
(7) § 1241 (refusing to aid a police officer);
(8) § 1243 (obstructing firefighting operations);
(9) § 1301 (disorderly conduct);
(0) § 1315 (public intoxication);
(1) § 1322 (criminal nuisance).
§ 2731. Venue of prosecution for bigamy
In any case of bigamy, prosecution may be had in the County
where the bigamous marriage was contracted, where the offender resides, or where he is apprehended.
§ 2733. Venue of prosecutions for offenses involving the conduct of another
Any prosecution involving liability for the conduct of another may be heard and determined in the County in which the principal crime was committed, or in the County where the offense charged was committed.
§ 2734. Venue of prosecutions for receiving stolen property
A person charged with receiving stolen property may be prosecuted either in the County wherein the theft was committed, or in the County where property was received.
§ 2735. Transportation of stolen property by thief
If property is stolen in one County of this State and carried into another by the thief, the thief may be prosecuted in either county.
§ 2737. Venue of prosecutions for kidnapping
In any case of kidnapping, the prosecution may be had in the County where the crime was commenced, or in any County through which the person kidnapped was transported.
Chapter 42
CLASSIFICATION OF OFFENSES
§ 4201. Classification of felonies
(1) Felonies defined by this Criminal Code are classified, for the purpose of sentence, into five categories, as follows:
(a) Class A felonies;
(b) Class B felonies;
(c) Class C felonies;
(d) Class D felonies;
(e) Class E felonies;
(2) The classification of each felony defined in this Criminal Code is expressly designated in the section defining it. Any offense defined outside this Criminal Code which is declared to be a felony without specification of the classification thereof shall be deemed a class E felony, and, notwithstanding any other provisions as to punishment, such offense shall be subject to the provisions of section 4205 of this Criminal Code.
§ 4202. Classification of misdemeanors
(1) Misdemeanors are classified, for the purpose of sentence, into three categories as follows:
(a) Class A misdemeanors
(b) Class B misdemeanors
(c) Class C misdemeanors
(d) Unclassified misdemeanors
(2) Each misdemeanor defined in this Criminal Code is either a class A or a class B or a class C misdemeanor, as expressly designated in the section defining it.
(3) Any offense defined outside this Criminal Code which is declared by law to be a misdemeanor or a crime without specification or the classification thereof shall be an unclassified misdemeanor.
There shall be a class of offenses denominated violations. No offense is a violation unless expressly declared to be a violation in this Criminal Code or in the statute defining the offense.
§ 4204. Authorized disposition of convicted offenders
in accordance with this Criminal Code. This section applies to all judgments of conviction, whether entered after a trial or upon a plea of guilty or nolo contendere.
(2) A person convicted of a class A felony shall be sentenced to life imprisonment in accordance with § 4205 of this chapter, unless the conviction is for first degree murder, in which event the provisions of § 4209 shall apply. Notwithstanding the provisions of any other statute, a sentence of life imprisonment or a sentence under § 4209 may not be suspended or reduced by the Court.
(3) When a person is convicted of any offense other than a class A felony the Court may take the following action:
(a) Impose a fine as provided by law for the offense;
(b) Impose a fine and place the offender upon probation;
(c) Commit the offender to the Department of Health and Social Services, with or without a fine, or with any other punishment provided by law for the offense;
(d) Suspend the imposition or execution of sentence;
() Place the offender upon probation;
(a) Impose a period of imprisonment and place the offender upon probation to commence when he is released from prison.
(4) Notwithstanding anything in this Criminal Code to the contrary, probation or a suspended sentence shall not be substituted for imprisonment where the statue specifically indicates that a prison sentence is mandatory or may not be suspended.
(5) The court may authorize the payment of a fine in installments. When imposing probation the court shall direct that the offender be subject to the supervision of the Department of Health and Social Services and the Court order shall specifiy those conditions under which the offender may remain at liberty on probation.
(6) In committing an offender to the Department of Health and Social Services the Court shall fix the maximum term of incarceration.
(7) Where modification of judgment is not provided by rule of Court, the Court may modify a judgment within 90 days after it is ordered. Dispositions other than commitment to the Department of Health and Social Services, and such commitments which are revoked, shall not entail the loss by the offender of any civil rights, except as provided in the State Constitution.
(8) The Court may direct that a person placed on probation be released on his entering into a recognizance, with or without surety, during such period as the Court directs, to appear and receive sentence when called upon, and, in the meantime, to keep the peace and be of good behavior.
(9) The Court may, if it thinks proper, direct that the offender pay the costs of the prosecution or some portion thereof, and may further impose terms and conditions to be complied with by the offender during any period which it deems proper.
(10) At any time within the period mentioned in the recognizance, but not afterwards, the Court may, upon being satisfied by information on oath that the offender has failed to observe any of the conditions of his recognizance, or any of the terms or conditions of his probation, issue an order for his apprehension and thereupon, after proper hearing, impose sentence upon him.
§ 4205. Sentence for felonies
(1) A sentence of imprisonment for a felony shall be a definite sentence. The maximum term of imprisonment shall be as provided in subsection (2) of this section.
(2) The maximum term of imprisonment which the Court may impose for a felony is fixed as follows:
(a) For a class A felony, life imprisonment, except for conviction of first degree murder in which event the provisions of § 4209 shall apply; provided, however, that in the case of an attempt to commit any Class A felony, the Court shall impose a
term of imprisonment and may impose life imprisonment, but may impose less than life imprisonment, except for conviction of an attempt to commit first degree murder, in which event the Court shall impose life imprisonment.
(b) For a class B felony, from 3 to 30 years and such fine or other conditions as the Court may order;
(c) For a class C felony, from 2 to 20 years and such fine or other conditions as the Court may order;
(d) For a class D felony, 10 years and such fine or other conditions as the Court may order;
(e) For a class E felony, 7 years and such fine or other conditions as the Court may order.
(3) In the case of the conviction of any felony other than a class A felony, the Court may impose the maximum term of imprisonment as stated in subsection (2) of this section or any part thereof, or it may impose any sentence authorized by § 4204 of this Criminal Code.
§ 4206. Sentence for misdemeanors
(1) The sentence for a class A misdemeanor shall be fixed by the Court and shall not exceed two years' imprisonment and such fine or other conditions as the Court may order.
(2) The sentence for a class B misdemeanor shall be fixed by the Court and shall not exceed six month's imprisonment and such fine or other conditions as the Court may order.
(3) The sentence for a class C misdemeanor shall be fixed by the Court and shall not exceed three months' imprisonment and such fine or other conditions as the Court may order.
(4) The sentence of imprisonment for an unclassified misdemeanor shall be a definite sentence. The term shall be fixed by the Court, and shall be in accordance with the sentence specified in the law defining the offense.
§ 4207. Fines for misdemeanors and violations
(1) A sentence to pay a fine for a class A misdemeanor shall be a sentence to pay an amount fixed by the Court not exceeding $1,000.
(2) A sentence to pay a fine for a class B or a Class C misdemeanor shall be a sentence to pay an amount fixed by the Court not exceeding $500.
(3) A sentence to pay a fine for an unclassified misdemeanor shall be a sentence to pay an amount, fixed by the Court, in accordance with the provisions of the law defining the offense.
(4) Subject to the provisions of § 4210, a sentence to pay a fine for a violation shall be a sentence to pay an amount fixed by the Court not exceeding $250 if there is no prior conviction of the same violation. In cases where the party convicted as a prior conviction for the same violation the sentence shall be to pay an amount fixed by the Court not exceeding $500.
(5) The provisions of this section do not apply to a corporation.
§ 4208. Fines for corporations
A sentence to pay a fine, when imposed on a corporation, shall be a sentence to pay an amount, fixed by the Court, not exceeding:
(1) $10,000, when the conviction is a felony;
(2) $5,000, when the conviction is a class A misdemeanor or of an unclassified misdemeanor for which a term of imprisonment in excess of three months is authorized, unless the law defining the offense permits a greater fine;
(3) $2,000, when the conviction is of a class B or Class C misdemeanor or of an unclassified misdemeanor for which the authorized term of imprisonment is not in excess of three months, unless the law defining the offense permits a greater fine;
(4) $500, when the conviction is of a violation if there is no prior conviction of the same violation;
(5) $1,000, when the conviction is a violation and the defendant has a prior conviction of the same violation; or
(6) Any higher amount equal to double the amount of money or double the value of the property gained by the defendant through the commission of the offense.
§ 4209. Conviction and Punishment for First Degree Murder
(1) In any prosecution for first degree murder the procedure governing the determination of guilt shall be as follows:
(a) If the defendant enters a plea of guilty, or a plea of nolo contendere, the Court shall, after a hearing without a jury, determine whether or not to accept such a plea.
(i) In the event of a plea of guilty the Court shall determine the voluntariness of the plea, the mental capacity of the defendant to understand the nature of the proceedings, and shall require the State to present evidence sufficient to establish a prima facie case. If these requirements are established the Court shall accept the plea of guilty, unless the Court determines that a manifest injustice would result in the acceptance of such a plea.
(ii) In the event of a plea of nolo contendere the Court shall make a determination of the same issues required to be determined in the event of a plea of guilty; provided, however, that the decision of the Court whether or not to accept the plea of nono contendere shall be in the absolute discretion of the Court.
(b) In the event of a plea of not guilty by reason of mental illness, the Court shall determine such issue in accordance with the rules of the Superior Court.
(c) In the event of a plea of not guilty the matter of the determination of whether the defendant is guilty or not guilty of the charge of any lesser included offense, shall be made by a jury, unless a jury trial is effectively waived by the defendant and the State, in which event the judge shall be the trier of fact as well as the law. The issue to be tried by the jury or the Court as the trier
of fact shall be limited to the determination of the question whether the defendant is guilty or not guilty of the crime of first degree murder. If the defendant is found guilty of a crime less than first degree murder, he shall be deemed to have been found not guilty of first degree murder and the other provisions of this Code shall apply to the punishment for the offense of which the trier of fact has found the defendant guilty. In the event that the defendant is found guilty of first degree murder the procedure set forth in subsection (2) of this section shall apply.
(2) In any case in which a finding has been entered by a verdict or a plea of guilty or a plea of nob contendere that the defendant is guilty of first degree murder, the Court shall impose a sentence of death, or a sentence of life imprisonment without benefit of parole or a sentence of life imprisonment, as determined in accordance with the following procedure:
(a) In the event of a plea of guilty or a plea of nolo contendere accepted by the Court or a finding of guilt entered by the Court as the trier of fact, the Court shall, as promptly as practicable conduct a hearing to determine which of the punishments set forth above the Court will impose. The Court may order a presentence investigation to be completed and submitted before the hearing, and the defendant and his attorney shall have reasonable access to that report before the hearing. The hearing, without a jury, shall be conducted and the sentence imposed by the trial judge or, if he is unavailable, by another judge of the Court. In the hearing evidence may be presented by either party on any matter relevant to sentence including the nature and circumstances of the crime (without undue repetition of evidence adduced at the trial), defendant's background and history, character witnesses, criminal record and any relevant aggravating or mitigating circumstances. The Court, in its discretion, may receive the presentence report and any relevant evidence not legally privileged, regardless of its admissibility under the exclusionary rules of evidence.
(b) In the event of a determination of guilt by a jury, the Court shall, except as provided in subsection (c) of this section, as promptly as practicable after the determination of guilt conduct a hearing before the same jury which determined the guilt of the defendant. If the same jury is unable to serve because of the lack of a complete panel of twelve members, due to death, illness,
disqualification or any other reason satisfactory to the Court, the Court may impanel an entirely new jury for this purpose, and the inability of the previous jury to serve shall not affect the determination of guilt. In the hearing evidence may be presented by either party on any matter relevant to sentence including the nature and circumstances of the crime (without undue repetition of evidence adduced at the trial), defendant's background and history, character witnesses, criminal record and any relevant aggravating or mitigating circumstances. Upon the conclusion of the hearing the Court shall charge the jury that it may return a verdict of any one of the three available punishments for first degree murder as set forth in this section, and that such verdict is required to be unanimous and is binding on the Court. In the event that the jury shall be unable to reach a unanimous verdict, the jury shall be discharged and the Court shall impose one of the three punishments set forth in this section, as the Court in its discretion shall determine. In this latter event the Court shall not be required to conduct an additional hearing unless it orders a presentence investigation, in which event the defendant and his attorney shall have reasonable access to the report of such investigation and the hearing shall be limited to any new matter disclosed by such report. In the event that the trial judge, or the judge who presided at any hearing before a jury to determine the sentence, shall be unable to impose sentence by reason of death, illness or disability, another judge of the Superior Court may impose sentence without the necessity to conduct an additional hearing unless the Court is satisfied that manifest justice may result.
(c) After a determination has been made by a jury that the defendant is guilty of first degree murder, the submission to the jury of the sentence to be imposed may be waived and the same submitted to the Court as if there had been a plea of guilty or nolo contendere, provided that the defendant and the State concur in such waiver and the Court approves the waiver.
(3) If the Court imposes a sentence of life imprisonment, the defendant will be eligible for parole or good merit or behavior credits, to the extent authorized by law. A person sentenced to life imprisonment without benefit of parole shall be ineligible for parole or for merit or good behavior credits, but shall be confined during the balance of his life. The imposition of a sentence of death shall be upon such terms and conditions as the Court may
impose in its sentence, including the place, the number of witnesses, and conditions of privacy. Punishment of death shall, in all cases, be inflicted by hanging by the neck, and the carrying out of such sentence may not be less than ten days after the imposition of the sentence. The Court or the Governor may suspend the execution of the sentence until a later date to be specified.
§ 4210. Arrest and disposition; detoxification centers
(a) Any intoxicated person taken into custody for a violation of Section 1315 of this Title shall immediately be taken to a detoxification center where lie shall be admitted as a patient.
(1) The arresting officer shall leave a summons for such intoxicated person with the chief medical officer of the detoxification center ordering such intoxicated person to appear before a Justice of the Peace at a date not to exceed a period of five (5) days from the date of admission to the center.
(2) The intoxicated person shall be given a physical examination to determine the possible existence of any disease or ailment which threatens the health or safety of such individual; and upon a finding of any such disease or ailment, the medical staff of the detoxification center shall give such treatment as it deems necessary and practicable.
(b) Upon regaining sobriety and being informed of his physical condition, the person in custody shall inform the chief medical officer of the intoxication center as to whether, until such time as he is to appear for trial, he wishes to remain a patient or be released from custody.
(c) Should the person in custody validly consent to remain as a patient and to undergo testing procedures, he shall be tested to determine if he is a chronic alcoholic. A diagnosis of chronic alcoholism shall serve as an affirmative defense to violations of Section 1315 of this Title.
(d) Should it be shown to the satisfaction of the Court that the person accused of intoxication suffers from chronic alcoholism, he shall be acquitted of the charge of drunkness and:
(1) released from custody; or
(2) temporarily released from custody under such conditions of treatment as the Court may prescribe; such period of temporary release shall not exceed one year after which defendant shall be unconditionally released.
§ 4211. Payment of expenses
Any person treated under the provisions of this Chapter shall, any law to the contrary notwithstanding, be responsible for the incurred expenses, and shall be billed for same by the Department of Mental Health.
§ 4212. Definitions relating to sections 4210 and 4211
For the purpose of this subchapter, the following words and phrases shall have the meanings respectively ascribed to them.
"Detoxification center" shall mean a medical facility, approved by the Department of Health and Social Services, or its successor, which shall provide appropriate medical services for intoxicated persons, including initial examination, diagnosis, and temporary treatment.
"Intoxicated person" shall mean a person whose powers of self-control have been substantially impaired because of the consumption of alcohol.
"Chronic alcoholic" shall mean a person who compulsively and habitually uses alcoholic beverages to the extent that they injure his health and interfere with his social and economic functioning.
"Sobriety" shall mean an individual's state of being when not under the influence of alcohol.
"Valid consent" shall mean the voluntary giving of asset to testing procedures by a legally competent person; in the case of a minor or incompetent, such assent shall be obtained from a parent or guardian of the individual or in the absence of either, a person in loco parentis, to undergo testing.
§ 4213. Habitual criminal; life sentence
(a) Any person who has been three times convicted of a felony, other than those which are specifically mentioned in subsection (b) hereunder, under the laws of this State, and/or any other State, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the Court in which such fourth or subsequent conviction is had, an imposing sentence, may, in its discretion, impose a life sentence upon the person so convicted.
(b) Any person who has been two times convicted of a felony or an attempt to commit a felony hereinafter specifically named, under the laws of this State, and/or any other State, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony hereinafter specifically named, or an attempt to commit such specific felony, is declared to be an habitual criminal, and the Court in which such third or subsequent conviction is had, in imposing sentence, shall impose a life sentence upon the person so convicted unless the subsequent felony conviction requires or allows and results in the imposition of capital punishment. Such sentence shall not be subject to the probation or parole provisions of Title 11, Chapter 43.
-8'03 Arson in the first degree
826 Burglary in the first degree
825 Burglary in the second degree
636 Murder in the first degree
635 Murder in the second degree
632 Manslaughter
783 Kidnapping
613 Assault in the first degree
763 Rape
766 Sodomy
832 Robbery in the first degree
§ 4214. Sentence of greater punishment because of previous conviction
(a) If at the time of sentence, it appears to the court that the conviction of a defendant constitutes a second or other conviction making the defendant liable to a punishment greater than the maximum which may be imposed upon a person not so previously convicted, the court shall fully inform the defendant as to such previous conviction or convictions and shall call upon the defendant to admit or deny such previous conviction or convictions. If the defendant shall admit the previous conviction or convictions, the court may impose the greater punishment. If the defendant shall stand silent or if he shall deny the prior conviction or convictions, he shall be tried upon the issue of previous conviction; provided, however, that the foregoing procedure shall not apply in cases of fourth offenders liable to sentence of life imprisonment under section 4212 of this title.
(b) lf, at any time after conviction and before sentence, it shall appear to the Attorney General or to the Superior Court that, by reason of such conviction and prior convictions, a defendant should be subjected to the provisions of Section 4213 of this title, the Attorney General shall file a motion to have the defendant declared an habitual criminal under the provisions of Section 4213 of this title. If it shall appear to the satisfaction of the Court at a hearing on the motion that the defendant falls within the provisions of Section 4213 of this Title, the Court shall enter an order declaring the defendant an habitual criminal and shall impose sentence accordingly.
Section 3. Title 11, Delaware Code, § 615 as the same existed prior to the effective date of this Act is preserved; it shall be renumbered as § 4213 of Section 2 of this Act. Title 11, Delaware Code, § 757, as the same existed prior to the effective
date of this Act is preserved; it shall be renumbered as § 1336 of Section 1 of this Act.
Section 4. Title 10, Delaware Code, Chapter 9, is amended as follows:
(a) § 921 (b) (2) is amended by striking the words "manslaughter" (except by motor vehicle), robbery, assault with intent to commit murder", and substituting in lieu thereof the following words "manslaughter, robbery in the first or second degree, attempted murder (first or second degree),".
(b) § 922 is amended as follows:
(1) Subsection "(h)" is amended by repealing the numbers "§ § 431432" therein and substituting in lieu thereof the number "§ 1102".
(2) Subsection "(i)" is amended by repealing said subsection in its entirety and inserting in lieu thereof a new subsection "(i)" to read as follows:
"(i) Interference with custody of a child, 11 Del. C. § 785
(3) Subsection "(m)" is amended by deleting the number "§ 433" and inserting in lieu thereof the number "§ 1106".
(4) Subsection "(n)" is amended by repealing said subsection in its entirety and substituting in lieu thereof a new subsection to read as follows:
"(n). Furnishing tobacco to a child, 11 Del. C. § 1106 (1)"
(5) Subsection "(o)" is amended by repealing said subsection in its entirety and substituting in lieu thereof a new subsection to read as follows:
"(o) Permitting a child to be present where gambling activity is maintained or conducted, 11 Del. C. § 1106 (3)."
(6) Subsection "(q)" is amended by repealing said subsection in its entirety and substituting in lieu thereof a new subsection to read as follows:
"(q) Sexual assault on a child, 11 Del. C. § 761 (3)."
(7) Subsection "(r)" is amended by repealing said subsection in its entirety and substituting in lieu thereof a new subsection to read as follows:
"(r) Sexual misconduct, 11 Del. C. § 762; promoting prostitution in the first degree, 11 Del. C. § 1353 (2)."
(8) Subsection "(s)" is repealed.
(9) Subsection "(t)" is amended by repealing said subsection in its entirety and substituting a new subsection in lieu thereof to be designated as subsection (s) and to read as follows:
"(s) Intra-family offenses against the person, 11 Del. C. §,601, 602, 611."
(10) Subsection "(u)" is amended by repealing said subsection in its entirety and substituting in lieu thereof a new subsection to be designated as subsection "(t)" and to read as follows:
"(t) Incest, 11 Del. C. § 771."
(11) Subsection "(v)" is redesignated as subsection "(u)".
Section 5. Any offense, action proceeding, suit, litigation, judgment, order or appeal based upon any of the sections or subsections at Title 10, Delaware Code, Chapter
9, amended or repealed in Section 4 of this Act shall remain open and operative until final disposition.
Section 6. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect any other provision or application of the Act which can be given effect without the invalid provision or application, and to that end each provision of this Act is declared to be severable.
Section 7. This Act shall become effective on April 1, 1973.
Approved July 6, 1972.