District of Columbia v. Hunt

• Decision Date: 05 May 1947
• Docket Number: No. 9345.,9345.
• Citation: 82 US App. DC 159,163 F.2d 833
• Parties: DISTRICT OF COLUMBIA v. HUNT.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 US App. DC 159, 163 F.2d 833 (1947)

DISTRICT OF COLUMBIA v. HUNT.

No. 9345.

United States Court of Appeals District of Columbia.

Argued March 3, 1947.

Decided May 5, 1947.

Mr. Milton D. Korman, Assistant Corporation Counsel, District of Columbia, with whom Messrs. Vernon E. West, Corporation Counsel, Chester H. Gray, Principal Assistant Corporation Counsel, and Henry E. Wixon Assistant Corporation Counsel, District of Columbia, were on the brief, for appellant.

Mr. John T. Bonner, of Washington, D. C., with whom Mr. James K. Hughes, of Washington, D. C., was on the brief, for appellee.

Before STEPHENS, EDGERTON, and WILBUR K. MILLER, Associate Justices.

STEPHENS, Associate Justice:

This appeal presents a question as to the propriety of consolidation for trial, in the Criminal Division of the Municipal Court, on motion of the appellant District of Columbia, of three informations separately charging each of three women, Mary Karika, Carmen Beach, and the appellee Judy Hunt, with being a vagrant in violation of paragraphs (3) and (4) of D.C.Code, 1940 Supp. V, § 22 — 3302, 55 Stat. 808, ch. 589, § 1, Act Dec. 17, 1941. The text of those parts of the statute which are pertinent is printed in the margin.¹

The information against the appellee contained two counts. The first charged that between February 3, 1945, and the date of the information, August 8, 1945, at 1713 Pennsylvania Avenue, Northwest, and divers other places, in the District of Columbia, she was "a vagrant, to wit; a person leading an immoral and profligate life who has no lawful employment and has no lawful means of support realized from a lawful occupation and source . . .." The second count charged that at the same time and places she was "a vagrant, to wit; a person who frequents, and is employed in a house and establishment of ill fame, and who engages in and commits acts of fornication and perversion for hire . . .." The informations against Mary Karika and Carmen Beach differed from that against the appellee and from each other only in respect of the dates when the vagrancy was charged to have commenced and in respect of the names of the defendants. After each of the defendants had pleaded not guilty, the appellant moved to consolidate the three cases for trial, and over the objection of the appellee this motion was granted. The three cases were accordingly tried together. The appellee was found not guilty under the first count, but guilty under the second, and was sentenced to pay a fine of $200 or to serve sixty days in jail. The disposition of the charges against the other two defendants does not appear in the record. The appellee appealed to the Municipal Court of Appeals, assigning as error the granting of the motion for consolidation. That court held the consolidation improper and therefore reversed the conviction and ordered a new trial. The appellant, under D.C.Code, 1940 Supp. V, § 11 — 773, 56 Stat. 196, ch. 207, § 8, Act April 1, 1942, made petition for allowance of an appeal to this court. On account of the practical importance in prosecutions in the Municipal Court of the question of the propriety of the consolidation, we allowed the appeal.

Consolidation of informations for trial in the Municipal Court is governed by a rule entitled "Joinder and Consolidation" the text of which we print in the margin.² The question for decision is whether or not the order of consolidation was proper under this rule. We agree with the decision of the Municipal Court of Appeals that it was not proper.

Under the plain words of the rule consolidation of two or more informations for trial is conditioned upon the possibility of joinder of the offenses and of the defendants in a single information; and such joinder is permitted only if the defendants are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

A vagrant is a probable criminal; and the purpose of the statute is to prevent crimes which may likely flow from his mode of life.³ Hence the statute denounces and makes punishable being in a condition of vagrancy rather than, as contended by the appellant, the particulars of conduct enumerated in the statute as evidencing or characterizing such condition. Accordingly the "act or transaction or . . . series of acts or transactions constituting an offense or offenses" in which the appellee was alleged to have participated were, in the first count, being "a person leading an immoral and profligate life who has no lawful employment and has no lawful means of support realized from a lawful occupation and source," and, in the second count, being "a person who frequents, and is employed in a house and establishment of ill fame, and who engages in and commits acts of fornication and perversion for hire." But this being a person leading, or who frequents, etc., charged to the appellee is not the same as that charged to Mary Karika and is not the same as that charged to Carmen Beach. A condition personal to a given individual is not the same as a condition personal to another even though each such condition is evidenced by particulars of conduct described in the same words. The conditions are merely similar.

Even if the contention of the appellant that what the statute denounces is not the condition of vagrancy but the particulars of conduct enumerated in § 22 — 3302 be, arguendo, accepted, still the result is the same. For acts of immorality, profligacy, frequenting and employment in a house of ill fame and acts of fornication or perversion for hire ascribed to the appellee, in the very nature of such acts, cannot be the same as those charged to Mary Karika or those charged to Carmen Beach. Such acts are similar, but not identical. And the "series" of such "acts or transactions" ascribed to the appellee cannot be the same as the "series" charged to Mary Karika or to Carmen Beach. Each "series" would be similar to the others but not identical therewith.

The appellant urges that the question of consolidation is within the discretion of the trial judge and that no abuse is shown. This ignores the clear terms of the rule making consolidation of informations for trial dependent upon the possibility of joinder, and making joinder dependent upon allegations that the defendants separately charged participated in the "same act or transaction or in the same series of acts or transactions." If these conditions are fulfilled, there is a discretion, i. e., then the trial judge "may" consolidate the informations for trial, although he is not required to do so. But if, as in the instant case, the acts or transactions in which the several defendants are alleged to have participated are not the same, then, the condition for joinder being unfulfilled, there is no discretion with respect to consolidation. The Municipal Court is authorized by statute "to make rules of practice, pleading, and procedure, not inconsistent with law, and to modify and change the same from time to time, to insure the proper administration of justice." D.C.Code 1940, § 11 — 722, 41 Stat. 1312, ch. 125, § 11, Act March 3, 1921. The rules have the force of law. Wise v. Herzog, 1940, 72 App.D.C. 335, 114 F.2d 486.

The appellant asserts that the rule substantially parallels Rev.Stat. 1878, § 1024, 18 U.S.C.A. § 557, and that thereunder consolidation is discretionary. But the rule and the statute are not parallel. Rev. Stat. § 1024 provides:

"When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated." Italics supplied

It is by virtue of the italicized words that a Federal trial court is invested with a discretion in respect of consolidation. Firotto v. United States, 8 Cir., 1942, 124 F.2d 532; Morris v. United States, 9 Cir., 1926, 12 F. 2d 727, petition for writ of certiorari dismissed per stipulation of counsel, 1926, 296 U.S. 666, 57 S.Ct. 755. Those words do not occur in the Municipal Court rule.

The appellant relies also upon Section 269, as amended, of the Judicial Code, providing that "On the hearing of any appeal . . . in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties."⁴ But erroneous denial of a separate trial cannot be classed as merely technical. The right not to be tried with another or others in whose cases the evidence would relate to a distinct, even though similar, act than that in which a defendant is alleged to have participated, is a substantial procedural right. It is a fundamental of our system of law that one person shall not be held criminally responsible for the independent act of another. And the fate, in a consolidated trial, of one defendant can hardly be unaffected by evidence relating to the acts of others. Moreover, in the instant case actual prejudice is obvious. We quote from the opinion of Judge Hood, speaking for the Municipal Court of Appeals:

". . . Enlarging the scope of the testimony to include proof against all three indicates the reason for the restrictions on joinder. There is danger that such a procedure will result in evidence against one being used cumulatively against the others when it actually is not applicable to them. The government, in support of its charge that the defendants had engaged in fornication for hire, produced a witness who testified that he had never given money to appellant appellee in the instant appeal but had paid two other persons, one of whom is a...