Thomas v. District of Columbia, 6880.

• Decision Date: 19 April 1937
• Docket Number: No. 6880.,6880.
• Citation: 90 F.2d 424,67 App. DC 179
• Parties: THOMAS et al. v. DISTRICT OF COLUMBIA.
• Court: U.S. Court of Appeals — District of Columbia Circuit

67 App. DC 179, 90 F.2d 424 (1937)

THOMAS et al. v. DISTRICT OF COLUMBIA.

No. 6880.

United States Court of Appeals for the District of Columbia.

Decided April 19, 1937.

Frederick A. Ballard and Samuel Levine, both of Washington, D. C., for plaintiffs in error.

Elwood H. Seal, Vernon E. West, and James W. Lauderdale, all of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

By separate informations filed in the Police Court of the District of Columbia it was charged that the plaintiffs in error on June 27, 1936, "in the District of Columbia aforesaid, and on Georgia Avenue, north west, did then and there throw, push, cast, deposit, drop, scatter, distribute and leave certain handbills, paper, circulars, on said street, and in a place where from the same is were likely to be taken up by the wind and scattered in the street contrary to and in violation of the Police Regulations in such case made and provided, and constituting a law of the District of Columbia." The police regulation in question provides as follows:

"No paper, handbills, dodgers, cards, circulars, or advertising matter of any kind or samples of merchandise shall be thrown, pushed, cast, deposited, dropped, scattered, distributed, or left in or upon any of the places designated in section 1 of this article, or in or upon or from any vehicle in any such places. Nor shall any such be thrown, pushed, cast, deposited, dropped, scattered, distributed, or left in or upon the parking or doorsteps of any premises in the District of Columbia, or within the building line, vestibule, or yard of any premises, if likely to be taken up by the wind and scattered in the streets, or in or upon any of the places mentioned in said section 1: Provided, That this regulation shall not prevent the delivery of newspapers and addressed envelops within the building line of any premises within the said District." Police Regulations of the District of Columbia, Art. III, Sec. 8 The "places designated in section 1" referred to are as follows: "any street, avenue, alley, highway, footway, sidewalk, parking, or other public space in the District of Columbia." Police Regulations of the District of Columbia, Art. III, Sec. 1. Section 8 of Article III of the Police Regulations was promulgated by the Commissioners of the District of Columbia under D.C.Code (1929) tit. 20, § 32; 24 Stat. 368, § 1, authorizing the Commissioners:

"to make, modify, and enforce usual and reasonable police regulations in and for said District as follows:

* * *

"Eighth. To prohibit the deposit upon the streets or sidewalks of fruit, or any part thereof, or other substance or articles that might litter the same, or cause injury to or impede pedestrians."

Although the plaintiffs in error were separately charged, they were jointly tried. At the trial evidence was introduced on the part of the District of Columbia through a police officer who, according to the bill of exceptions, testified as follows:

". . . the defendants, on the evening of June 27, 1936, were seen by him to hand to various persons certain handbills on the sidewalk in front of the Griffith's Stadium, located at 7th Street and Florida Ave., northwest. The witness approached the defendants and informed them that they could not hand out these handbills; that the defendants moved on to the northeast corner of 7th Street and Florida Avenue northwest and continued to hand to people the leaflets or handbills; that he then approached the defendants and placed them under arrest, taking from them all of the handbills. The witness then exhibited said handbills to the Court. The handbills were issued by the Communist Party of Washington, D. C., and contained an appeal for support of an outlined program. The matter contained in them is printed in the margin.¹

"The witness did not testify that he saw the defendants or any persons to whom the defendants handed such handbills throw or scatter such handbills on the street or ground, nor did he testify that such handbills were likely to be taken up by the wind and scattered in the streets, or in any of the places mentioned in Section 1, Article IX, of the Police Regulations of the District of Columbia.

"On cross-examination the witness testified that he did not see the defendants throw or leave any of the handbills on the ground or elsewhere."

Thereupon the District of Columbia rested its case, and after denial of a motion for a directed verdict, with exception taken in their behalf, the plaintiffs in error commenced their defense and the following took place:

"John Thomas testified that he and the defendant, Margaret Adams, handed to various persons certain leaflets or handbills of the character identified by Sergeant Umbaugh, in front of Griffith's Stadium on the night of June 27, 1936; that Sergeant Umbaugh approached him and the other defendant and said `You can't hand these things out;' that thereupon both defendants moved to the northeast corner of 7th Street and Florida Avenue, northwest; that they were undecided as to what to do, and that while talking to each other several pedestrians approached them and requested leaflets; that they then handed leaflets to said pedestrians and were thereupon arrested by Sergeant Umbaugh; that neither the witness nor the codefendant dropped or threw any of the leaflets on the ground.

"The defendant, Margaret Adams, took the stand in her own behalf. The Court asked the witness, `How long have you lived in Washington?' The witness replied, `About one year.' The Court then asked, `How long has Thomas been in this city?' The witness answered, `I think about 18 months.' The Court then said to the witness, `You are a communist, aren't you?' The counsel for the defendants objected to the question, stating to the Court that the political beliefs of the defendants were not an issue and that they were being tried for a violation of the health ordinance prohibiting the littering of streets, and that they were not charged with being Communists. The Court replied, `That is the charge,' and pointing to the leaflet said, `It says right here, "Vote Communist".' The Court then said, `If you do not like our system of government you ought to get out of this country.' Counsel for the defendants objected to these statements by the Court and argued that the contents of the leaflet was not an issue and pointed out that the only thing they were charged with, according to the Informations, was the violation of Section 8, Article 3 of the Police Regulations of the District of Columbia which reads as follows: Here counsel read the police regulation

"The Judge stated, `They're Communists. They are trying to overthrow the government.' Counsel for the defendants objected to these statements by the Court and took exceptions.

"The Court asked the counsel, `Do you agree with them that they have the right to pass out these leaflets?' Counsel replied, `Yes, they do have the right to pass out these leaflets or any leaflets so long as they do not violate any law in doing so. There is no law in the District of Columbia prohibiting distribution of leaflets that voice pro-Communist or any other sentiments.' The Court said, `In that case, if you're one of them, then you should take the witness stand and plead guilty yourself.' During all this time, the defendant, Margaret Adams, was still on the witness stand. Counsel for defendants stood mute, made no effort or expressed no desire to argue the case. The Judge said to the defendants, `I find you both guilty, and sentence you to pay a fine of Twenty Five dollars apiece or serve thirty days in jail.' Turning to counsel he said, `And if you don't like my verdict, you can take an exception.' Counsel thereupon took an exception. Then he wanted to offer witnesses. The Court stated he said nothing about witnesses until the Court had decided the case.

"After taking such exception, the...