CHAPTER 547

FORMERLY

HOUSE BILL NO. 1048

AN ACT TO AMEND TITLE 11, DELAWARE CODE, BY MAKING A SERIES OF AMENDMENTS TO THE CRIMINAL CODE RELATING TO DEFINITIONS OF CRIMES, DESIGNATION OF CRIMES, DEFINITIONS, JURISDICTION OF COURTS.

Be it enacted by the General Assembly of the State of Delaware (Two-thirds of the members elected to each House concurring therein):

Section 1. Amend Title II, Delaware Code, Section 303 (c), by striking the word "suggests" as it appears therein and inserting in lieu thereof the word "raises".

Section 2. Amend Title II, Delaware Code, Section 763, by striking said section, and inserting in lieu thereof the following new sections:

§763. Rape in the second degree

A male is guilty of rape in the second degree when he intentionally engages in sexual intercourse with a female without her consent.

Rape in the second degree is a class B felony.

§764. Rape in the first degree

A male is guilty of rape in the first degree when he intentionally engages in sexual intercourse with a female without her consent, and

(1) in the course of the offense he inflicts serious physical, mental or emotional injury upon the victim, or

(2) the victim was not the defendant's voluntary social companion on the occasion of the crime and had not previously permitted him sexual contact.

Rape in the first degree is a class A felony.

Section 3. Amend Title II, Delaware Code, Section 772, by striking in its entirety subsection (c) thereof, and by redesignating subsection (d) as the new subsection (c).

Section 4. Amend Title II, Delaware Code, Section 766, by striking said section, and by inserting in lieu thereof the following new sections:

§765. Sodomy in the second degree

A person is guilty of sodomy in the second degree when he intentionally engages in deviate sexual intercourse with another person without that person's consent.

Sodomy in the second degree is a class C felony.

§766. Sodomy in the first degree

A person is guilty of sodomy in the first degree when he intentionally engages in deviate sexual intercourse with another person without that person's consent, and

(1) in the course of the offense he inflicts serious physical, mental, or emotional injury upon the victim, or

(2) the victim is less than 12 years old. Sodomy in the first degree is a class B felony."

Section 5. Amend Title II, Delaware Code, Section 783, by striking said section, and by inserting in lieu thereof the following new sections:

§783. Kidnapping in the second degree

A person is guilty of kidnapping in the second degree when he unlawfully restrains another person with any of the following purposes:

(1) To hold him for ransom or reward; or

(2) To use him as a shield or hostage; or

(3) To facilitate the commission of any felony or flight thereafter; or

(4) To inflict physical injury upon him, or to violate or abuse him sexually; or

(5) To terrorize him or a third person; and the actor voluntarily releases the victim alive, unharmed, and in a safe place prior to trial.

Kidnaping in the second degree is a class B felony.

§783 A. Kidnapping in the first degree

A person is guilty of kidnapping in the first degree when he unlawfully restrains another person with any of the following purposes:

(1) To hold him for ransom or reward; or

(2) To use him as a shield or hostage; or

(3) To facilitate the commission of any felony or flight thereafter; or

(4) To inflict physical injury upon him, or to violate or abuse him sexually; or

(5) To terrorize him or a third person; and the actor does not voluntarily release the victim alive, unharmed, and in a safe place prior to trial.

Kidnapping in the first degree is a class A felony.

Section 6. Amend Title II, Delaware Code, Section 832, by striking subparagraph (2) in its entirety, and inserting in lieu thereof a new subparagraph (2) to read as follows:

"(2) Displays what appears to be a deadly weapon; or".

Section 7. Amend Title II, Delaware Code, Section 1103 (a), by striking the period (.) after the word "others" as the same appears therein, and by inserting in lieu thereof the following new language:

", whether or not such child shall be adjudged a 'delinquent child' by a court."

Section 8. Amend Title II, Delaware Code, Sections 1252 and 1253, by striking the words "department of correction" as the same appear therein, and by inserting in lieu thereof the words "Department of Health and Social Services".

Section 9. Amend Title II, Delaware Code, Section 1336 (a), by adding the following to the definition of "Investigative or law enforcement officer":

"it shall also include any officer of the Government of the United States or any agency thereof who is empowered by law to conduct investigations of, or to make arrests for, any offense involving the laws of the United States and any attorney authorized by a law of the United States to prosecute or participate in the prosecution of any such offense;".

Section 10. Amend Title II, Delaware Code, Section 1336 (k), by striking the second to last paragraph thereof beginning with the words "No order", and by inserting in lieu thereof the following new paragraph:

"No order entered under this section shall authorize the interception of any wire or oral communication for a period of time longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and may be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this section. In no case shall an order entered under this section authorize the interception of wire or oral communications beyond the attainment of the authorized objective or in any event for any period exceeding thirty (30) days. Extensions or renewals of such an order may not be granted unless an application for it is made in accordance with this section, and the Court makes the findings required by subsections (I), (j) and this subsection."

Section II. Amend Title II, Delaware Code, Section 1336 (k), by inserting in the paragraph therein beginning with the words "Whenever an order authorizing" between the words "person" and "furnishing" the following language:

"is according the person whose communications are to be intercepted. Any communication common carrier, landlord, custodian or other person".

Section 12. Amend Title II, Delaware Code, Section 1444, by adding a new paragraph thereto to read as follows:

"The term 'shotgun' as used in this section means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger. The term `sawed-off shotgun' as used in this section means a shotgun having one or more barrels less than 18 inches in length or any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches."

Section 13. Amend Title II, Delaware Code, Section 1442, by striking the letter "D" as the same appears therein, and inserting in lieu thereof the letter "E".

Section 14. Amend Title II, Delaware Code, Section 1443, by striking the words "E felony" as the same appear therein, and inserting in lieu thereof the words "A misdemeanor".

Section 15. Amend Title II, Delaware Code, Section 1447, by adding thereto the following new paragraph to be designated as subsection (d):

"(d) A person may be found guilty of violating this section notwithstanding that the felony for which he is convicted and during which he possessed the deadly weapon is a lesser included felony of the one originally charged."

Section 16. Amend Title II, Delaware Code, Section 2701, by striking the first paragraph of subsection (b) thereof, and inserting in lieu thereof the following new paragraph:

"(b) The Court of Common Pleas for the State of Delaware shall have original jurisdiction to hear, try and finally determine all misdemeanors and violations alleged to have been committed within New Castle County, outside the City of Wilmington, Kent and Sussex Counties, except where jurisdiction over such offenses is vested exclusively in another court. The jurisdiction conferred by this subsection includes concurrent jurisdiction with the Justice of the Peace in all cases in which the Justices of the Peace have jurisdiction."

Section 17. Amend Title II, Delaware Code, Section 2702, by striking in subsection (24) thereof the words "malicious obstruction of emergency telephone calls", and inserting in lieu thereof the words "aggravated harassment".

Section 18. Amend Title II, Delaware Code, Section 2702, by adding thereto a new subsection (25), and redesignating the present subsections (25), (26) and (27) as (26), (27) and (28) respectively, the new subsection (25) to read as follows:

"(25) Section 1313 (malicious obstruction of emergency telephone calls);".

Section 19. Amend Title II, Delaware Code, Section 4213, by amending the list of crimes in subsection (b) thereof by striking the lines "783 kidnapping" and "763 rape", and inserting in lieu thereof the following:

"783 Kidnapping in the first degree

783A Kidnapping in the second degree

763 Rape in the second degree

764 Rape in the first degree".

Section 20. Amend Title II, Delaware Code, Section 4213, by adding thereto a new subsection (c) to read as follows:

"(c) Any person who has been convicted for an offense which occurred within this State prior to July 1, 1973 of any of the hereinafter enumerated crimes shall be considered as having been convicted previously of the crimes specified in subsection (b) hereof for purposes of the operation of Section 4213 and Section 9214 of this title. Any person convicted under the laws of another state, the United State or any territory of the United States of any felony the same as or equivalent to any of the above or hereinafter named felonies is a habitual offender for the purposes of this section and Section 4214 of this title.

Such felonies include:

Arson in the first degree,

Burglary in the first degree,

Burglary in the second degree,

Murder in the first degree,

Murder in the second degree,

Manslaughter except involuntary,

Manslaughter by motor vehicle,

Assault with intent to murder,

Poisoning with intent to murder,

Kidnapping,

Abducting child under 12 years,

Kidnapping child under 15 years,

Maiming by lying in wait,

Maiming without lying in wait,

Rape,

Assault with intent to commit rape,

Robbery,

Assault with intent to commit robbery."

Section 21. Amend Title II, Delaware Code, Section 4213, by adding thereto a new subsection (c) to read as follows:

"(c) A conviction of rape or kidnapping under either Section 763 or Section 783 as the same existed and were defined prior to the amendment of this section, shall be considered a prior conviction for the purpose of the effectiveness and applicability of this subsection, this section and Section 4214 of this title."

Section 22. The change of section number, separation of crimes into degrees and other amendments in this Act to the provisions of the Criminal Code, Title II, Delaware Code, shall not render any previous act, arrest, prosecution trial, appeal or other proceeding void or inoperative or otherwise immune from full and appropriate prosecution.

Approved July 26, 1974.