Hensley v. United States, 2451.

• Decision Date: 04 November 1959
• Docket Number: No. 2451.,2451.
• Citation: 155 A.2d 77
• Parties: Edward H. HENSLEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

155 A.2d 77

Edward H. HENSLEY, Appellant, v. UNITED STATES, Appellee.

No. 2451.

Municipal Court of Appeals for the District of Columbia.

Argued September 14, 1959.

Decided November 4, 1959.

James F. O'Donnell, Washington, D. C., for appellant.

Frank Q. Nebeker, Asst. U. S. Atty., Washington, D. C., with whom Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, Retired) sitting by designation under Code, § 11-776(b).

CAYTON, Acting Judge.

After trial by the court appellant was convicted on a charge of assault. Code 1951, § 22-504.

We first consider appellant's claim that the finding of guilt was not supported by sufficient evidence. The assault followed a honking episode on a public highway and an exchange of words between complaining witness and occupants of appellant's automobile. Someone in appellant's automobile threw a bottle at the automobile of the complainant. Shortly afterwards, while complainant was behind the wheel of his car waiting for a traffic light, a man ran from appellant's car and struck him in the face several times. According to complaining witness, "defendant Hensley jumped from the driver's seat of his automobile, ran around the cars to the passenger side of complainant's car, opened the door and yelled to the other man to `get in the back;' that the other man then attempted to get in the rear seat by forcing the driver's seat of complainant's car forward; * * * that when defendant Hensley started to get in the car on the passenger side, complainant slid across the seat and forced his way past defendant and ran; that the defendant did not strike him but he did brush by defendant as he attempted to escape * * *."

A police officer testified that at the precinct defendant admitted striking the complaining witness. On the stand defendant denied that he struck the complaining witness and said that his activity at the scene was for the purpose of grabbing the assailant and preventing the assault.

It will be seen that there was some evidence that defendant admitted committing the assault. But even if it was his companion who did all the actual striking, there was ample evidence on which to charge and convict defendant as a principal, as one "advising, inciting, or conniving at the offense, or aiding or abetting the principal offender." Code 1951, § 22-105.

The next question is whether there was a valid waiver of jury trial. When defendant was arraigned he pleaded not guilty and demanded trial by jury. A month later the case was called for jury trial and defendant was present. After the completion of the voir dire examination defendant's attorney approached the bench and informed the trial judge that the defense desired to waive jury trial and take a trial by the court. The prosecution voiced no opposition and the judge told the jury in open court that the defense preferred a trial by the court and that the jury would be relieved from sitting on the case. Accordingly the judge proceeded to try the case without a jury.

Code 1951, § 11-616 provides that when an accused has a constitutional right to trial by jury he shall have such a trial unless he shall in open court expressly waive such trial and request to be tried by the judge. No decision in this jurisdiction has ever held that such waiver must be made and announced by defendant personally or that a waiver made and announced by counsel in open court in the presence of the accused is ineffectual unless corroborated by the defendant personally.

Appellant relies on People v. Washington, 95 Cal.App.2d 454, 213 P.2d 70, which prescribed strict construction of a state constitutional provision that waiver of jury trial should be expressed in open court by both defendant and his counsel. That view has been consistently taken by the California courts. People v. Barnum, 147 Cal.App.2d 803, 305 P.2d 986, see also Hughes v. Heinze, 9 Cir., 268 F.2d 864. But neither the Federal Constitution nor our local statute requires announcement of waiver by both counsel and defendant.

Appellant also relies upon Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357, which dealt with the question of waiver of the right to counsel. There the Supreme Court said that whether there had been an intelligent waiver of such right must depend in each case upon the particular facts and circumstances, including the background, experience and conduct of the defendant. In a later case the Supreme Court said that an accused in the exercise of a free and intelligent choice may waive trial by jury, as he may waive his right to assistance of counsel. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435.

This court had followed the same approach in dealing with the general question of waiver, Humphries v. United States, D.C.Mun.App., 68 A.2d 803. In this case we have concluded that on the basis of the entire record before us it would not be right to make an appellate...