Scott v. District of Columbia

• Decision Date: 18 May 1956
• Docket Number: No. 1756.,1756.
• Citation: 122 A.2d 579
• Court: D.C. Court of Appeals
• Parties: James A. SCOTT, Jr., Appellant, v. DISTRICT OF COLUMBIA, Appellee.

Page 579

122 A.2d 579

James A. SCOTT, Jr., Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 1756.

Municipal Court of Appeals for the District of Columbia.

Argued April 2, 1956.

Decided May 18, 1956.

Frank D. Reeves, Washington, D. C., with whom Curtis P. Mitchell, Washington, D. C., was on the brief, for appellant.

Hubert B. Pair, Asst. Corp. Counsel, with whom Vernon E. West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, and Milton D. Korman, Asst. Corp. Counsel, were on the brief, for appellee.

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

HOOD, Acting Chief Judge.

In a multiple count information appellant was charged with certain violations of the District of Columbia Sales Tax Act.¹ The first count charged appellant with having engaged in the sale of alcoholic beverages and having failed or neglected to obtain a Certificate of Registration.² The eight remaining counts charged appellant with failing or neglecting to file and pay monthly sales tax returns for the months of July 1951 through February 1952.³ Appellant's demand for a trial by jury was refused. At the conclusion of the trial the court found appellant guilty "as to all counts," and a sentence of $300 or sixty days was imposed on each count. All sentences were ordered to run consecutively with the exception of the sentence on the ninth count which was ordered to run concurrently with that on the eighth count. Appellant urges six grounds for reversal of his conviction.

Appellant first says it was error to refuse his demand for trial by jury. Making no claim to constitutional right of trial by jury, appellant rests his claim on the statutory right to jury trial in cases "wherein the fine or penalty may be more than $300, or imprisonment as punishment for the offense may be more than ninety days".⁴ Appellant's claim is that in effect a single penalty of $2,400 was imposed upon him and therefore he was entitled to a jury trial under the above-mentioned Code Section. He argues that the rationale of Chambers v. District of Columbia, 90 U.S.App.D.C. 153, 194 F.2d 336, 337, should be applied here.

In the Chambers case the defendant was charged in one information with a number of violations of the local Minimum Wage Law.⁵ He was found guilty and sentenced to pay a fine of $25 on each count, some to run consecutively and others concurrently. On the back of the information was listed the penalty as to each count with a final notation, "`total fine $100.'" The question there was whether defendant was entitled to an appeal of right or was restricted to an application for allowance of an appeal by the statute which denies an appeal of right "where the penalty imposed is less than $50".⁶ The United States Court of Appeals, in reversing this court, held that there was a consolidated penalty of $100 applicable to the case as a whole, comparable to a general sentence; that there was but one judgment; that such judgment was in excess of $50; and therefore defendant was entitled to an appeal of right. "Such a case," said the Court, "properly treated as one in the trial court, need not be considered more than one for purposes of appeal." We do not think the Chambers case should be construed to hold that whenever two or more charges are included in one information that each loses its separate identity and characteristics, and that for all purposes the case must be treated as a single entity. The Court merely held that when "the judgment, notwithstanding multiple counts, is single, the size of the penalty imposed by it controls" the application of the statute with respect to right of appeal.

In the instant case the record reveals that the judgment was not single. Appellant was found guilty "as to all counts" and a separate sentence was imposed on each count. No reference was made, as in the Chambers case, to an aggregate or consolidated penalty. Nothing indicates that the trial court intended to impose a general sentence. On the contrary everything points to an intent to treat each count separately. Assuming that the rationale of the Chambers case, applicable to appeals of right, would be applicable to the question of right of trial by jury, the facts of this case clearly distinguish it from the Chambers case.

However, the fact that the present case is distinguishable from the Chambers case does not dispose of appellant's contention that lie was entitled to a jury trial. Determination of the right of appeal requires a retrospective examination, i. e., the appellate court looks to the judgment since its amount controls. On the contrary, determination of the right to jury trial necessitates a prospective examination, because the Code provides that in cases "wherein the fine or penalty may be more than $300," the accused upon demand is entitled to trial by jury. (Italics supplied.)

In this jurisdiction, as in the majority of others, on conviction under several counts of one information or indictment a sentence may be imposed on each count or a general sentence may be imposed without apportionment to the various counts.⁷ While it has been said that the practice of separate sentences on the various counts is preferable to a general sentence,⁸ yet at the commencement of the trial in the instant case there existed the possibility that a general sentence exceeding $300 might be imposed. Does this possibility require that trial by jury be granted if demanded? A reasonable interpretation of the Code Section requires a negative answer to this question. Its plain meaning, in our opinion, is that if a penalty of more than $300 may be imposed on any one offense, then upon demand a trial by jury should be had. We see no reason why consolidation of a number of petty offenses in one information should confer upon the defendant a right he would not have if the charges were brought in separate informations. Nine offenses consolidated for trial do not, either in fact or under the provisions of the Code, amount to one greater offense. Our conclusion is that it was not error to deny the demand for jury trial.

The second point is that the penalty imposed on the first count was in excess of that prescribed by the statute. The government concedes, as it must, that the maximum penalty under this count could not exceed $100.⁹ The fine of $300 was therefore improper and remand will be necessary for resentencing under this count.¹⁰

The third claim of error relates to the refusal of the trial court to exclude the testimony of government witness Kresslein. This witness testified he was an official of the Internal Revenue Service assigned to the Baltimore District, that as chief of the Return and Index Unit he was custodian of all applications for Federal alcohol tax stamps, and that these records revealed that appellant had applied for and received tax stamps for those months in which appellant was charged with failing to file a District of Columbia tax return and paying the appropriate tax. Appellant insists that the application of the best evidence rule precluded this testimony, that the records themselves should have been introduced and that it was error to permit the witness to testify to their contents. This specific objection does not appear to have been made at trial and for that reason we might ignore it....