Clifton v. United States, 3946.

• Decision Date: 03 December 1923
• Docket Number: 3946.
• Citation: 295 F. 925
• Parties: CLIFTON v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

295 F. 925

CLIFTON v. UNITED STATES.

No. 3946.

United States Court of Appeals, District of Columbia.

December 3, 1923

Submitted November 6, 1923.

Rehearing Denied December 21, 1923.

Appeal from the Supreme Court of the District of Columbia.

James A. O'Shea, of Washington, D.C., for appellant.

Peyton Gordon, of Washington, D.C., for the United States.

Before SMYTH, Chief Justice, VAN ORSDEL, Associate Justice, and MARTIN, presiding Judge of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.

Appellant Clifton, was convicted in the Supreme Court of the District of Columbia upon an indictment, in two counts, charging him with the negligent killing of one George Williams. It appears that defendant was operating a motorcycle, on the rear seat of which the decedent was riding. The evidence discloses that the motorcycle was being operated at high speed, and that in attempting to avoid a collision with a police patrol wagon it struck the front fender of the patrol, and then ran into the street curbing, causing Williams to be thrown to the pavement, inflicting injuries from which he subsequently died.

While there was a motion for a directed verdict, based upon the insufficiency of the evidence, we are convinced from a careful review of the record that the evidence is amply sufficient to sustain the charge made in the indictment. Defendant in the first count of the indictment is charged with feloniously, wantonly, recklessly, and negligently making an assault upon Williams, by operating and driving a motorcycle whereon Williams was riding, against and upon a curbstone, thereby throwing him to the ground and giving him mortal wounds of which he died. The charge in the second count is that defendant drove the motorcycle upon which Williams was riding, feloniously, wantonly, recklessly, and negligently, without due care and caution, and with a reckless and wanton disregard for the safety of Williams that defendant, while under the influence of intoxicating liquor, drove the motorcycle at great and excessive and unlawful rate of speed, and, while so operating the motorcycle, failed and neglected to control the steering mechanism and brakes, and failed and neglected to keep a lookout for other vehicles, and thereby caused and suffered the motorcycle to run into another vehicle and against a curbstone, throwing Williams off and inflicting wounds from which he died.

It will be observed that the same offense is charged in each count but alleged to have been committed in different ways. It is urged by counsel for appellant that the court should have sustained his motion to require the prosecution to elect the count upon which it would go to trial. Motion for election was made by counsel before the introduction of any testimony and was not thereafter renewed. At this stage of the proceedings the prosecution could not have been required to elect. To require an election before testimony is offered unless the reasons are apparent on the face of the indictment, might result in a failure of justice. Appellant was not entitled to an election in any event until it became necessary...