Simcic v. United States

• Decision Date: 11 January 1952
• Docket Number: No. 1137.,No. 1136.,1136.,1137.
• Citation: 86 A.2d 98
• Parties: SIMCIC v. UNITED STATES. MICIOTTO v. UNITED STATES.
• Court: D.C. Court of Appeals

Page 98

86 A.2d 98

SIMCIC v. UNITED STATES.

MICIOTTO v. UNITED STATES.

No. 1136.

No. 1137.

Municipal Court of Appeals District of Columbia.

Argued November 19, 1951.

Decided January 11, 1952.

R. Sidney Johnson, Washington, D. C., for appellant, Simcic.

Harry M. Rubin, Jr., Washington, D. C., (Nicholas J. Chase, Washington, D. C., on the brief), for appellant, Miciotto.

William E. Kirk, Jr., Asst. U. S. Atty., Washington, D. C., Charles M. Irelan, U. S. Atty. (Joseph M. Howard and Emory W. Reisinger, II, Asst. U. S. Attys., all of Washington, D. C., on the brief), for appellee, United States.

Before CAYTON, Chief Judge, HOOD, Associate Judge, and SCOTT, Associate Judge of the Municipal Court, sitting by designation.¹

CAYTON, Chief Judge.

This was a prosecution under our Negligent Homicide Statute, Code 1940, § 40-606,² and grew out of a collision at 20th and K Streets, N. W. at 1:30 in the morning when the lights were out and the intersection uncontrolled. Charged as defendants were Joseph M. Simcic, who was operating a bus south on 20th Street, and Alexander R. Miciotto, who was operating a private automobile east on K Street. The two vehicles collided at the intersection and one or both struck the third car, which was going north on 20th Street, with such force that the driver, Heston Simon, was thrown from it and killed. The information charged that the defendants "did then and there operate a certain motor vehicle, to wit: an automobile and bus at an immoderate rate of speed and in such a reckless, careless and negligent manner as to cause and did cause the death of one Heston Simon against the form of the statute. * * *" Under that information the two defendants were tried together and both were found guilty by a jury. Both have appealed their convictions.

Appellants claim that it was improper to join them in the information 4nd improper to try them together. The question of joinder is governed by Rule 5(a) of the Criminal Division of the Municipal Court which provides: "Two or more defendants may be charged in the information if they 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." Appellant Miciotto says the defendants did not participate "in the same act or transaction * * constituting an offense or offenses," and also that the information did not allege that they did so. He also argues that the acts of immoderate speed, negligence, carelessness or recklessness ascribed to one defendant cannot be the same as those ascribed to the other. Appellant Simcic argues that Rule 5 requires some concerted action or a joint legal duty or undertaking between the two defendants. He says there was no such concerted action in this case.

Both appellants rely on United States v. Geare, 1923, 54 App.D.C. 30, 293 F. 997, a prosecution for involuntary manslaughter growing out of the death of a patron in a theater on whom the roof collapsed. There five defendants were charged with having caused the death: the architect, the steel fabricator, the cement contractor, the construction superintendent, and the work inspector. It was held that before one defendant can be held responsible for the criminal neglect of another, the connection or joint character of the undertaking must clearly appear and that since the negligence charged occurred while the defendants were engaged in the performance of lawful acts, the allegations that they unlawfully, feloniously, and carelessly failed to perform their separate obligations in a careful manner were mere conclusions of the pleader. No facts being alleged from which joint liability could be inferred, the court ruled that no joint undertaking was shown.

Also relied on by appellants is United States v. Interstate Properties, 80 U.S. App.D.C. 392, 153 F.2d 469, 471. There three defendants were charged with manslaughter in the improper construction and maintenance of a dumb-waiter shaft resulting in a fatal fire. It was held that there was no sufficient allegation of violation of a common law duty jointly owed by the defendants "and, consequently, when weighed only in the common law balance, there was a misjoinder of defendants * * *." Citing Ainsworth v. United States, 1 App. D.C. 518, and United States v. Geare, 54 App.D.C. 30, 293 F. 997.³ It is to be noted that neither of the cases just named were decided on the basis of any statute or rule of court concerning joinder; furthermore both cases are easily distinguished on the facts from the case at bar.

An explicit rule of the Municipal Court governs this case. That rule was adopted pursuant to express Congressional authority and has the force of law.⁴ Since the Municipal Court Rule is substantially the same as Federal Criminal Rule 8, 18 U.S.C.A. (also adopted pursuant to Congressional authority), we may with profit consider the background of the Federal Rule and what was said about it by the official Advisory Committee appointed by the Supreme Court. In its report⁵ the Committee noted that in the absence of any general statute providing for joinder of defendants, joinder was generally permitted if the defendants cooperated in the offense or had breached a legal duty. Specifically the committee stated that at the time of drafting the Rules an indictment of two defendants in one count was permitted by all authority if the defendants acted jointly, but "not permitted by most authority, if A and B participated in the offense without cooperation." The Committee interpreted the Rules as not only incorporating present general practice but going somewhat beyond it to permit joinder in such cases as United States v. Geare, supra; United States v. Dietrich, C.C.D.Neb., 126 F. 664; State v. Blackley, 191 Wash. 23, 70 P.2d 799, 801.

In State v. Blackley, just cited, the facts are strikingly similar to those before us on this appeal. There the information alleged that one Bicknell had driven an automobile stage partially off the highway without leaving sufficient clearance on the highway, and that Blackley, driving while intoxicated and in a reckless manner, struck the end of the stage, veered to the left, and collided with the automobile of a third person, G. M. Caylor, killing him. Bicknell and Blackley were charged in the same information with manslaughter. On motion the information was quashed and the State appealed. The Supreme Court of Washington reversed and said:

"* * * The rule is that where but one crime is charged in the indictment or information, all who participate in its consummation may be joined as defendants in the same information, even though their contributions to the result may be by different methods or acts. * * *

"In the case at bar, there is but one crime charged — the killing of G. M. Caylor by the negligent acts of the defendants. Notwithstanding the defendants are not charged with the same acts of negligence, they are properly joined, since, under the facts alleged, the negligent acts of each contributed to the consummation of the crime."

We find no decision presently applicable which would bar a joinder under the facts of this case. The allegation was in the language of the statute that the two defendants operated their vehicles "at an immoderate rate of speed and in such a reckless, careless and negligent manner as to cause and did cause the death of one Heston Simon against the form of the statute. * * *" This language, we think it clear, brought the case under the provision of Rule 5 and sufficiently alleged that in the operation of their vehicles, defendants had participated in the same act or transaction or in the same series of acts or transactions constituting the offense charged. This is the general effect of the decisions governing the present practice under Federal Criminal Rules. Cataneo v. United States, 4 Cir., 167 F.2d 820; Scheve v. United States, 87 U.S.App.D.C. 289, 184 F.2d 695; Malatkofski v. United States, 1 Cir., 179 F.2d 905; United States v. Needleman, D.C., 6 F.R.D. 205.

Our decision in Hunt v. District of Columbia, D.C.Mun.App., 47 A.2d 783, 784, is of no help to defendants. There three defendants were charged with vagrancy for frequenting and being employed in a house of ill fame. We ruled that under 18 U.S. C.A. § 557 and Municipal Court Criminal Rule 5, it was not proper to consolidate the trials of defendants who had engaged separately and without concert of purpose in independent crimes of the same nature. We said, "Vagrancy is a status or condition and the statute punishes one for being a certain kind of person, not for the doing of an overt act", and that it is not a crime that can be committed jointly or in concert because in essence it is a personal condition arrived at by a mode of living. We ruled that though the acts were similar; they were not the same act or the same series of acts. Affirming our decision, the United States Court of Appeals said, giving effect to Rule 5, that joinder depends upon allegations that the defendants participated in the "same act or transaction or in the same series of acts or transactions * * *." District of Columbia v. Hunt, 82 U.S.App.D.C. 159, 161, 163 F.2d 833, 835. We rule that under the rule in question joinder of the defendants in this case was not improper.

We turn next to the claim that there should have been separate trials of the two defendants. We know of no decision which would require us to rule that a severance should have been granted as a matter of right. On the contrary, the rule is that defendants jointly charged should be tried together and that granting separate trials is a matter of discretion. Lucas v. United States, 70 App.D.C. 92, 104 F.2d 225. It is true that the Government had to prove the individual acts of the two defendants leading up to the collision. It is also true that the two defenses were separate and distinct and even antagonistic one to the other. It may also be true that each defendant's chances...