Clawans v. District of Columbia

• Citation: 84 F.2d 265,66 App. DC 11
• Decision Date: 11 May 1936
• Docket Number: No. 6601.,6601.
• Parties: CLAWANS v. DISTRICT OF COLUMBIA.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

66 App. DC 11, 84 F.2d 265 (1936)

CLAWANS v. DISTRICT OF COLUMBIA.

No. 6601.

United States Court of Appeals for the District of Columbia.

Argued April 6, 1936.

Decided May 11, 1936.

Seth W. Richardson, of Washington, D. C., for appellant.

E. Barrett Prettyman, Corp. Counsel, Edward M. Curran, and Raymond Sparks, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

GRONER, Associate Justice.

Appellant was convicted in the police court of the District of Columbia of a violation of an Act of Congress of July 1, 1902, as amended by an act approved July 1, 1932 (47 Stat. 550, c. 366, § 7, pars. 39, 47, and 48 (D.C.Code Supp. I, 1933, T. 20, §§ 1739, 1755, 1756), and sentenced to pay a fine of $300 or to confinement in jail for sixty days. Appellant, when arraigned, claimed the right to a jury trial in accordance with the provisions of article 3, § 2, cl. 3, of the Constitution, providing that, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." The right was denied, and the District of Columbia now insists that no constitutional privilege of appellant was invaded because of title 18, § 165, of the 1929 District of Columbia Code (16 Stat. 153, c. 133; 26 Stat. 848, c. 536; 31 Stat. 1196, c. 854; 43 Stat. 1120, c. 443, § 4), providing summary trial by a magistrate.

This last-mentioned act was passed for the government of the District of Columbia and provides that prosecutions in the police court shall be on information; that where the accused would be entitled to a jury trial under the Constitution, trial shall be by a jury unless waived; and that in cases where the accused would not by force of the Constitution be entitled to trial by jury, trial shall be by the court without a jury, unless, in cases where the fine or penalty may be more than $300 or imprisonment more than ninety days, the accused shall demand a trial by jury, in which case the trial shall be by jury.

The offense charged in the information was that appellant was engaged in the business of dealer in the return portions of railroad excursion tickets, contrary to the provisions of the act of Congress approved July 1, 1932, supra.

Paragraph 39 of that act (D.C.Supp. I, 1933, T. 20, § 1739) declares that dealers in secondhand personal property, including the return or other unused portion of any ticket, order, or token purporting to evidence the right of the holder or possessor thereof to be transported by any railroad or other common carrier, from one state or territory of the United States or the District of Columbia, to any other state or territory of the United States or to the District of Columbia, shall pay a license tax of $50 per annum.

Paragraph 48 (section 1756), that any person violating the provisions of the act "shall upon conviction be fined not more than $300 or imprisoned for not more than ninety days."

The answer to the question we have to decide depends, as we shall point out, upon whether the nature of the offense and the punishment prescribed bring it within the class of offenses described as "petty" in Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99, 1 Ann. Cas. 585.

In the Schick Case, a prosecution by criminal information for violation of a section of the oleomargarine law punishable by a fine of $50, the Supreme Court said that, "So small a penalty for violating a revenue statute indicates only a petty offense," and held that in such circumstances there is no constitutional requirement of a jury.

On the other hand, in Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223, a prosecution for common law conspiracy, the defendant was charged with having, through an association of musicians, boycotted one of the members of the association and deprived him of his right to pursue his calling and trade. The defendant, in a summary proceeding and without a jury, was fined $25, and on petition for habeas corpus the Supreme Court held that the denial of a jury trial was a violation of his constitutional rights, because the offense charged was an indictable offense at common law.

And in District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177, a defendant charged with reckless driving in the streets of the city of Washington and sentenced to 30 days in jail, was held entitled to a jury trial, also on the ground that the offense was indictable at common law.

In the two last-mentioned cases the Supreme Court said that the provisions of the Constitution with relation to jury trial are to be read and interpreted in the light of the common law, and, as we have seen, held in each case that, since the offense charged was triable at common law only by jury, the constitutional provisions were violated by trial without one.

Obviously if the sole criterion is whether the offense was triable only by jury at common law, the conviction here would have to stand, for the offense charged here was, perhaps, unknown to the common law. Also, if the test is whether the punishment which may be imposed is of a kind and nature which could be imposed in summary proceedings at the time of the adoption of the Constitution, the conviction would likewise have to stand; for the most casual examination of the history of the English criminal law from the time of James I to the time of our Revolution — and, as well, the history of criminal procedure in most of the American Colonies — shows unmistakably that summary proceedings, involving even severer punishments than the maximum provided under the statute in question, were not then uncommon. For example, many offenses not only punishable by fines, but those also in which corporal punishment or imprisonment might be imposed, were both in England and in the Colonies tried solely by magistrates. Violations of laws relating to liquor, trade and manufacture, smuggling, traffic on the highways, the Sabbath, cheats, gambling, swearing, small thefts, assaults, offenses to property, servants, and seamen, vagabondage, and disorderly conduct, were all in England by acts of Parliament offenses triable without a jury. In New York in 1732 statutes were passed making triable before magistrates any misdemeanor, breach of the peace, or other criminal offense under the degree of grand larceny. Nearly the same provisions may be found in the laws of New Jersey and Maryland and Virginia. Citations to the statutes and instances of their application are collected at great length in an article in the Harvard Law Review of June, 1926 (vol. XXXIX); and other like instances are cited in State v. Glenn, 54 Md. 572, where the Court of Appeals of Maryland, in passing upon the right to trial by jury of a person charged with being an habitually dissolute person and sentenced to serve six months in a house of correction, said: "In England, notwithstanding the provision in the Magna Charta of King John, Art. 46, and in that of 9 Hen. 3, ch. 29, which declares that no freeman shall be taken, imprisoned or condemned, `but by lawful judgment of his peers, or by the law of the land,' it has been the constant course of legislation in that kingdom, for centuries past, to confer summary jurisdiction upon justices of the peace for the trial and conviction of parties for minor and statutory police offences; and this jurisdiction has been largely increased and extended in modern times, as will be seen by reference to Burn's Justice, tit. Conviction; Bacon's Abr.,...