Colts v. District of Columbia, 5050.

• Citation: 38 F.2d 535,59 App. DC 224
• Decision Date: 04 February 1930
• Docket Number: No. 5050.,5050.
• Parties: COLTS v. DISTRICT OF COLUMBIA.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 224, 38 F.2d 535 (1930)

COLTS v. DISTRICT OF COLUMBIA.^*

No. 5050.

Court of Appeals of District of Columbia.

Argued January 8, 1930.

Decided February 4, 1930.

H. T. Whelan and W. B. O'Connell, both of Washington, D. C., for plaintiff in error.

W. W. Bride, C. H. Gray, and R. E. Lynch, all of Washington, D. C., for the District of Columbia.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice.

Writ of error to the police court, involving the question whether one charged with reckless driving on a city street is entitled to a jury trial.

In an information, it was charged that Colts, on the 19th of July, 1929, "on O Street, Southeast, and on divers other streets" in the District of Columbia, "did then and there operate a certain motor vehicle at a greater rate of speed than twenty-two miles an hour over said public highway recklessly, that is to say at a greater rate of speed than was reasonable and proper, having regard to the width of said public highway, the use thereof, and the traffic thereon, in such manner and condition so as to endanger property and individuals, contrary to and in violation of an Act of Congress, the Traffic Regulations in such case made and provided, and constituting a law of the District of Columbia."

He requested a trial by jury, which was denied. A trial before the court resulted in his conviction and sentence to thirty days' imprisonment.

Section 9 of the District of Columbia Traffic Act of March 3, 1925, 43 Stat. 1119, 1123, as amended by section 5 of the Act of July 3, 1926, 44 Stat. 812, 814, under the heading "Speeding and Reckless Driving," provides:

"(a) No vehicle shall be operated upon any public highway in the District at a speed greater than twenty-two miles per hour except in such outlying districts and upon such highways as the director may designate. * * *

"(b) No individual shall operate a motor vehicle over any public highway in the District (1) recklessly; or (2) at a rate of speed greater than is reasonable and proper, having regard to the width of the public highway, the use thereof, and the traffic thereon; or (3) so as to endanger any property or individual; or (4) so as unnecessarily or unreasonably to damage the public highway.

"(c) Any individual violating any provision of this section where the offense constitutes reckless driving shall, upon conviction for the first offense, be fined not less than $25 nor more than $100 or imprisoned not less than 10 days nor more than 30 days; and upon conviction for the second or any subsequent offense such individual shall be fined not less than $100 nor more than $1,000, and shall be imprisoned not less than 30 days nor more than one year, and the clerk of the court shall certify forthwith such conviction to the director, who shall thereupon revoke the operator's permit of such individual.

"(d) Any individual violating any provision of this section, except where the offense constitutes reckless driving, shall, upon conviction for the first offense, be fined not less than $5 nor more than $25; upon conviction for the second offense, such individual shall be fined not less than $25 nor more than $100; upon conviction for the third offense or any subsequent offense such individual shall be fined not less than $100 nor more than $500, and shall be imprisoned not less than 30 days nor more than one year, and the clerk of the court shall certify forthwith such conviction to the director, who shall thereupon revoke the operator's permit of such individual."

Section 1 of the Code of Laws for the District of Columbia continues in force here "The common law, all British statutes in force in Maryland on the twenty-seventh day of February, eighteen hundred and one, * * * except in so far as the same are inconsistent with, or are replaced by, some provision of this code."

It is the contention of counsel for the District that the offense charged against Colts "was not the common law offense of reckless driving and that therefore his trial without a jury was authorized under Section 44 of the D. C. Code as amended by Section 4 of the Traffic Act of March 3, 1925, 43 Stat. 1119." That section, as amended, reads as follows:

"That prosecutions in the police court shall be on information by the proper prosecuting officer. In all prosecutions within the jurisdiction of said court in which, according to the Constitution of the United States, the accused would be entitled to a jury trial, the trial shall be by jury, unless the accused shall in open court expressly waive such trial by jury and request to be tried by the judge, in which case the trial shall be by such judge. * * *

"In all cases where the accused would not by force of the Constitution of the United States be entitled to a trial by jury, the trial shall be by the court without a jury, unless in such of said last-named cases wherein the fine or penalty may be more than $300, or imprisonment as punishment for the offense may be more than ninety days, the accused shall demand a trial by jury, in which case the trial shall be by jury. * * *"

It was an indictable offense at common law amounting to a breach of the peace to drive "a carriage through a crowded or populous street, at such a rate or in such a manner as to endanger the safety of the inhabitants." United States v. Hart, 1 Pet. C. C. 390, 392, Fed. Cas. No. 15316; Bowles v. District of Columbia, 22 App. D. C. 321, 323. The opinion in the Hart Case was written by Mr. Justice Washington.

The information in the present case charged Colts with operating a motor vehicle on one of the public streets of the District "recklessly * * * in such manner and condition so as to endanger property and individuals." He was therefore charged with an offense indictable at common law and amounting to a breach of the peace.

The third article (§ 2) of the Constitution provides that "the trial of all crimes, except in cases of impeachment, shall be by jury." It becomes necessary to determine whether the offense charged in this case is a "crime" within the meaning of the Constitution.

In Callan v. Wilson, 127 U. S. 540, 557, 8 S. Ct. 1301, 1303, 32 L. Ed. 223, the court said: "The third article of the constitution provides for a jury in the trial of `all crimes, except in cases of impeachment.' The word `crime,' in its more extended sense, comprehends every violation of public law; in a limited sense, it embraces offenses of a serious or atrocious character. In our opinion, the provision is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating only to felonies or offenses punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen." After a review of authorities, the court continues: ...