Byrd v. Dist. Of D.C.., 285.
| Decision Date | 25 June 1945 |
| Docket Number | No. 285.,285. |
| Citation | 43 A.2d 46 |
| Parties | BYRD v. DISTRICT OF COLUMBIA. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Municipal Court for the District of Columbia, Criminal Division.
Gladys O. Byrd was convicted for operating a rooming house without first having obtained a license therefor, and she appeals.
Reversed with instruction to award a new trial.
Joseph A. McMenamin, of Washington, D. C., for appellant.
Henry E. Wixon, Asst. Cor. Counsel, of Washington, D.C. (Richmond B. Keech, Corp. Counsel, Vernon E. West, Principal Asst. Corporation Counsel, and John Nesbitt, Asst. Corp. Counsel, all of Washington, D. C., on the brief), for appellee.
Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.
Appellant was convicted on a charge of operating a rooming house without first having obtained a license therefor. Regulations promulgated by the Commissioners of the District of Columbia define a rooming house as follows:
‘The term ‘rooming house’ shall mean any building or part thereof, other than a hotel or private club, containing sleeping accommodations occupied for a consideration by more than four persons who are not members of the immediate family of the owner or lessee of such building or part thereof, which said sleeping accommodations do not form a separate household unit or units with bath and kitchen exclusively for the use of the persons (not members of the immediate family of the owner or tenant) occupying such unit or units.'
The single issue developed at the trial was whether defendant furnished sleeping accommodations to more than four persons ‘for a consideration.’ A police officer testified that defendant admitted that she and nine other persons, none of whom was claimed to be a member of her immediate family, slept in the house; that four of them paid rent; that three paid no rent because they were defendant's relatives; that the remaining two paid no rent because one of them, William Mason, ‘takes care of the house,’ and the other, Joyce Alexander, ‘helped in the house.’ The District called as witnesses the four ‘paying’ roomers, who testified to their financial arrangements for their rooms; the three relatives, who testified they occupied rooms in the house but paid no rent; and Joyce Alexander, who testified that she stayed at the house only on occasional overnight visits and paid no rent. William Mason did not appear as a witness.
At the close of the Government's testimony the defendant moved for a dismissal on the ground that no case had been made out within the meaning of the regulation. The motion was denied and defendant declined to offer any evidence in her behalf. A finding of guilt and imposition of sentence followed, and this appeal was taken.
Appellant's position is that the testimony disclosed that only four people occupied sleeping accommodations for a consideration, and that William Mason cannot be considered within this category. The District's contention is that in addition to the four ‘paying’ roomers, William Mason, who occupied a room but paid no rent because he took care of the house, occupied sleeping accommodations for a consideration within the meaning of the regulation.
We think it is clear that one who occupies a room in consideration for services rendered occupies sleeping accommodations ‘for a consideration’ just as much as one who pays rent in the form of money. From the defendant's admission it was possible for the trial court to conclude that William Mason occupied a room in the house for which he rendered service in taking care of the house. Appellant, however, insists that since the testimony did not show the nature of the services rendered by Mason he must be considered as having the status of a servant or employee and not that of a roomer. It is common knowledge that many servants are partially compensated by room and board, and we think the regulation did not intend that servants be counted toward the ‘more than four persons' occupying the house. But this is in the nature of an exception to the regulation and we think that when the District proved that William Mason occupied a room in the house for a consideration in the form of services, the District made out a case. Of course, the burden of proof was upon the prosecution, but even in a criminal proceeding the burden of going forward with the evidence may be shifted to the defense. Bradford v. United States, 5 Cir., 130 F.2d 630, certiorari denied 317 U.S. 683, 63 S.Ct. 205, 87 L.Ed. 547. This is particularly true when the defendant relies upon an exception in the law, for the burden is upon the defendant to bring himself within the exception, rather than the prosecution to negative it. Williams v. United States, 78 U.S.App.D.C. 147, 138 F.2d 81, 153 A.L.R. 1213. It is both just and practicable that this should be so in this case, for the facts establishing the relationship of master and servant rather than landlord and roomer were ‘peculiarly within the knowledge of the defendant.’ Williams v. United States, supra.
If this were all to the case, we should be compelled to affirm; but we think there was error in the reception of certain evidence. Walter Steptoe was called as a witness for the District. He was one of the three persons described by defendant to the policeman as occupying a room in the house but paying no rent because he was a relative of the defendant. When called to testify he stated he did not pay rent. District counsel announced surprise, and asked permission to address leading questions to the witness, and thereupon asked the witness if he had previously stated to a police officer that he paid $4 per week room rent. The witness denied making such a statement. Thereupon, over objection, a police officer was permitted to testify that Steptoe had told him that he paid rent of $4 per week.
Our Code (1940, § 14-104) expressly provides that the trial court, when satisfied that a party producing a witness has been taken by surprise, in its discretion may permit the party to prove that the witness has made to the party or his attorney statements substantially variant from his sworn testimony, provided the circumstances of the supposed statements are first called to the witness's attention and the witness asked if he made such statements and, if so, allowed to explain them. ‘This section of the Code merely reduced to concrete form the established rule.’ Smith v. United States, 57 App.D.C. 71, ...
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