Chambers v. District of Columbia , 1951 D.C. App. LEXIS 155 ( 1951 )

HOOD, Judge.

Defendants were charged with eighteen separate violations of Wage Order No. 7 of the Minimum Wage and Industrial Safety Board under authority of the District Minimum Wage Law.¹ Six of these charges related to a female employee, Ethel Gray Lloyd, six related to another female employee, Garnette B. Bowyer, and the remaining six charges related to a third female employee, Anne M. Curtin. As to Ethel Gray Lloyd, it was alleged in the first count that defendants as her employers failed to pay her the minimum wage during each week of the period between the week ending May 7, 1949, through October 29, 1949. The second count made the same allegation as to the weeks between November- 5, 1949, and April 29, 1950. The third count made the same allegation for the period between May 6, 1950, and September 16, 1950. Covering the same periods and the same employee, counts ten, eleven and twelve alleged that the employers failed to keep required records of her employment. The charges as to Garnette B. Bowyer and Anne M. Cur-tin followed the same pattern as those relating to Ethel Gray Lloyd. Each of the eighteen ■ counts were so framed as to necessitate’ separate and different proof.

Trial was had without a jury and defendants were found guilty on each of the eighteen counts. A fine of $25 was imposed oh each of the counts but the sentences further provided that ás to fourteen of the counts the fines would run “concurrently”' while as to the remaining four of the counts the sentences would run “after” another. The net effect of the sentences was that the employers should pay $25 separately as to each of the thrée employees on the charges of paying less than the minimum wage and also a separate fine of $25 on all of the charges for failing to keep proper records. Separate entries were made of the fines as to each count but in parentheses following all such entries there was included a-notation “total fine $100.”²

Defendants filed no application for appeal in this court hut notice of appeal was filed in the trial court on January 31, which was more 'than three days after January 26 (-a Friday) when sentence was imposed. The District of Columbia moved to dismiss on the ground that while the aggregate of the fines was $100 no fine on any count exceeded $50 and that therefore there was no right of appeal. Defendants opposed the dismissal, urging that the aggregated fines of $100 gave them the right of appeal. Since the exact question presented is one of first impression in this jurisdiction, we asked for briefs and ordered oral argument.

The statute creating this court provides that “reviews of judgments in the criminal branch of the (Municipal) court where thé penalty imposed is less than $50, shall be by application for the allowance of an appeal,” and that such applicátion “shall be filed” in this court “within three days from the date of judgment.” Code 1940, Supp. VII, § 11-772. If that provision is applicable here then the appeal must be dismissed.

In Yeager v. District of Columbia, D. C.Mun.App., 33 A.2d 629, 630, a defendant was convicted under eight separate in-formations charging that he operated four rooming houses-without licenses and without bathing facilities. The cases were tried together and defendant was convicted and fined $25 in each case. We held he had no right of appeal, saying:

“The penalty imposed on appellant on each charge was' less than $50, but instead of filing applications for appeal, he filed a notice 'of appeal as of right. Although the total of the penalties imposed on the eight charges amounted to $200, appellant cannot be allowed to consider the total as one penalty and thereby avoid the express language of the statute. Each charge was a’ separate offense, covered by a separate information. Each charge required separate proof. A separate judgment or penalty was imposed on each charge.

“■Consolidation for trial did not destroy the separate identity of each charge or the judgments thereon. The judgment in each case was a single judgment from which there was no right of appeal but only the right to make application for an appeal. The right of appeal is a statutory right and the jurisdiction of this court is. purely statutory. We have no discretion to entertain appeals not taken in accordance with the statute, and we cannot extend the language of the statute.”

The only distinguishing feature between this case and the Yeager case is that here the various charges were made in separate counts in one information and there they were made in separate infor-mations. Where separate and distinct transactions of the same general nature are involved, the use of one indictment or information with separate counts is permitted.³ The use of a single information with multiple counts is a decided convenience,⁴ but if separate offenses are charged in separate counts they do not lose their identity because of their inclusion in one information. The charges remain separate and require separate proof. Each requires a separate verdict or finding and- if the verdict or finding is guilty separate sentences may be, as here, imposed.⁵ On appeal separate errors may be assigned with respect to the several convictions and one conviction may be reversed and another affirmed. From the filing of the information through trial and on to appeal the offenses remain separate.

The result is that we have here eighteen separate judgments imposing eighteen separate penalties of less than $50. The statute says that reviews of such judgments shall be by application for allowance of appeal filed in this court within three days from the date of judgment. The statutory procedure was not followed and we cannot alter the statute by giving a right of appeal where the statute does not allow it. Because as a matter of convenience the separate charges were placed in one information and tried at one time, we cannot hold that the separate sentences may be added together to make the amount requisite for an appeal of right.⁶ To do so would be to permit a mode of procedure to overcome express statutory language.

Appeal dismissed.

1 . Code 1940, § 36-401 et .seq., as amended, Code 1940, Supp. VII, § 36-401 et seq.

2 . Penalties under the statute, 'Code 1940, ’ § 86 — 417, are not less than $25 nor more than $100 or imprisonment of not less . than ten days nor more than three months or both such fine and imprisonment.

3 . Solomon v. United States, 58 App.D.C. 182, 26 F.2d 554.

4 . People v. Carr, 6 Cal.2d 227, 57 P.2d 489.

5 . Solomon v. United States, supra, footnote 3. In some instances courts impose a general sentence on the several counts, but that was not done here. The notation “(total fine $100)” was evidently explanatory of the net effect of the various judgments and was likely intended for the guidance of the financial clerk of the court whose duty is to receive payment of fines.

6 . Adams Express Co. v. Commonwealth, 175 Ky. 825, 195 S.W. 109; State v. Sanders, 159 La. 956, 106 So. 455.