United States v. Kronheim

• Decision Date: 26 April 1951
• Docket Number: No. 796.,796.
• Citation: 80 A.2d 280
• Parties: UNITED STATES v. KRONHEIM, Judge.
• Court: D.C. Court of Appeals

Page 280

80 A.2d 280

UNITED STATES v. KRONHEIM, Judge.

No. 796.

Municipal Court of Appeals District of Columbia.

Submitted April 9, 1951.

Decided April 26, 1951.

George Morris Fay, U. S. Atty. and J. Warren Wilson, Joseph M. Howard and' Frederick G. Smithson, Assts. U. S. Atty., all of Washington, D. C., for petitioner.

William E. Leahy and William J. Hughes, Jr., Washington, D. C., for respondent.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Judges.

HOOD, Judge.

Two informations were filed in the criminal division of the Municipal Court charging Elizabeth S. Dowell with violating the Healing Arts Practice Act by engaging in certain of the healing arts without a license. Code 1940, § 2-101 et seq. The Act requires that one engaged in the practice of medicine, osteopathy, chiropractic, etc., shall first obtain a license therefor, and imposes a penalty of a fine of not more than $100 or imprisonment for not more than ninety days, or both, for failure so to do.¹ The accused pleaded not guilty and demanded trial by jury. The Government opposed the demand, contending that the accused was not by force of the Constitution of the United States entitled to jury trial and that it was mandatory that trial be by the court without a jury. Code 1940, § 11-616. The trial court in a written opinion ruled that the accused was entitled to jury tria1.² Immediately following such ruling the Government filed a petition in this court asking for a writ of mandamus directing the trial court to expunge from the record its order setting the cases for trial by jury and further directing that the trial court order the cases for trial by court without a jury.

This court has authority to issue the extraordinary writ of mandamus in aid of its appellate jurisdiction and such authority extends to cases within its appellate jurisdiction although no appeal has been perfected. Mike's Mfg. Co. v. Zimzoris, D.C. Mun.App., 66 A.2d 414. The question here is whether the case is in which the writ should issue.

"The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Ass'n., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185. Petitioner asserts that the trial court had no jurisdiction to direct that the charges be tried by jury and therefore the writ should issue. We cannot agree that the court was without jurisdiction. It had jurisdiction of the charges and of the accused and it had jurisdiction to determine whether accused was entitled to have those charges tried before a jury. An erroneous decision on that question would not constitute an unlawful exercise of authority. The trial court is required daily in a variety of cases to decide whether an accused is entitled to jury trial. The question in such cases concerns the right of the accused and not the jurisdiction of the court.

Petitioner further argues that, aside from any question of jurisdiction, this is a case where the statute lays on the trial court a clear and plain duty to go to trial without a jury and that the writ should issue to compel the court to perform its duty. The duty is not so plain and clear. The question of when an accused has a constitutional right to trial by jury is by no means a simple one. See District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177, and District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L. Ed. 843. The Supreme Court in those and other cases has laid down no exact test for deciding the question. The trial court in acting on the demand for jury trial was performing a judicial function and not a ministerial act.

A more serious question arises from the fact that the ruling of the trial court cannot be reviewed in regular course of appeal. If on trial by jury the accused is...