District of Columbia v. Buckley ( 1942 )

STEPHENS, Associate Justice:

By an information, No. 484,036, filed in the Police Court of the District of Columbia on July 22, 1940, the appellee was charged with operating a motor vehicle in the District of Columbia on July 21 while under the influence of intoxicating liquor, in violation of an act of Congress constituting a law of the District of Columbia.¹ For convenience this charge will hereafter be described as driving while intoxicated. The appellee pleaded not guilty and demanded a jury trial, but a nolle prosequi was entered in open court on January 13, 1941.² By a second information, No. 497,-300, filed on January 13, ,1941, the appellee was charged with operating a motor vehicle and failing to keep on the right side of the street, in violation of a District of Columbia traffic regulation.³ This offense also was charged to have been committed on July 21, 1940.⁴ For convenience this charge will -hereafter be described as driving on the wrong side of the street. To this information the appellee pleaded guilty, and on January 13, 1941, a.fine of twenty-five dollars was imposed upon him by Police Judge Hobart Newman. On February 15 following, a third information, No. 501,335,. was filed against the appel-lee. This charged him, as did the first, with driving .while intoxicated. To this charge he filed a plea, and later an amended plea, of autrefois convict, alleging therein that the offense of driving on the wrong side of the street, in respect of which he had pleaded guilty under the second information, and the offense of driving while intoxicated charged in the third “were the outgrowth of . . . one identical act.” In this aspect of the plea, the' appellee relied upon the guaranty of the Fifth Amendment to the Constitution that no person shall “be subject for the same offense to be twice put in jeopardy . . . .” He also alleged that on July 21, the day before the filing of the first information, he had been arrested by officers of the Metropolitan Police Department and booked for “Driving while Drunk”; and that on July 22, when all of the facts involved within the knowledge of witnesses and police officers had been presented to an Assistant Corporation Counsel, the latter elected to file a “Reckless Driving” charge against him in the “Traffic Court” of the District; that the Assistant Corporation Counsel prepared such a charge and sent the same to the traffic court; that the appellee was later advised of this and advised also that he was expected to plead guilty to this charge, but that he refused so to do; whereupon this charge of “Reckless Driving” was taken out of the traffic court, and then the Assistant Corporation Counsel elected to file and did file a substituted information, to wit, the first information above described, charging the appellee with driving while intoxicated. Under these further allegations of the plea and upon further facts set forth below, the appellee urges an agreement forbidding prosecution upon the third information.

To the plea of autrefois convict the appellant District of Columbia filed a so-called replication (in truth a demurrer— because it raised no issue of fact but only one of law as to the sufficiency of the plea). To this replication the appellee filed a demurrer questioning its sufficiency in law. On May 1, after a hearing before Judge George D. Neilson of the Police Court, this demurrer was overruled; on May 17 the same judge denied a motion to vacate judgment and a motion for rehearing. In effect, this action upon these inappropriate pleadings (all that was necessary was a demurrer to the plea) sustained the replication and thus held the plea insufficient in law upon the facts therein asserted. In short, Judge Neilson held that the second information, charging driving on the wrong side of the street, and the third, charging driving while intoxicated, as a matter of law described different offenses, and that though they “were the outgrowth of . . . one identical act,” there would be no second exposure to jeopardy by trial of the appellee under the third information after his plea of guilty and sentence under the second. Judge Neilson filed a written opinion to such effect. His view was that the two offenses were different because different evidence would be required to sustain a conviction of each. On May 20 following, the appellee entered a plea of not guilty to the third information and demanded a jury trial. On June 20, he withdrew this demand. The business of the Police Court is apportioned amongst four branches, including the jury branch and the traffic branch.⁵ The proceedings thus far described under the third information had been in the jury branch, over which Judge Neilson was then presiding. Upon the withdrawal of the appellee’s demand for a jury trial, the case under the third information was certified by Judge Neilson to the traffic branch, in which Judge Hobart Newman, above referred to, was then presiding.

The case was called for trial before Judge Newman on June 20, and the^appel-lee asked leave to withdraw his plea of not guilty, and to re-enter the plea of autrefois convict. This leave was granted. On June 23, Judge Newman, upon the same pleadings and therefore upon the same admitted facts as those which were before Judge Neilson, ruled, to the exact contrary of Judge Neilson’s decision, that the plea was good, and thus that by trial on the third information after the plea of guilty and sentence under the second, the appel-lee would be twice exposed to jeopardy. Judge Newman also filed an opinion. As expressed therein, the theory of his ruling was that since -the offenses charged in the two informations were “the outgrowth of . . . one identical act,” a conviction for “one phase” of that act bars prosecution for another “phase.”

A petition for allowance of an appeal from Judge Newman’s order sustaining the plea was filed in this court by the District of Columbia. We allowed the appeal.

Of the questions presented by the statement of points on appeal we think it necessary to determine but one, to wit, did Judge Newman err in sustaining the plea in bar. We answer this question in the affirmative.

1. We held in Sims v. Rives, 1936, 66 App.D.C. 24, 84 F.2d 871, certiorari denied 1936, 298 U.S. 682, 56 S.Ct. 960, 80 L.Ed. 1402, in view of Gavieres v. United States, 1911, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, Morey v. Commonwealth, 1871, 108 Mass. 433, cited therein, and Morgan v. Devine, 1915, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153, that “‘the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes.’ ” (66 App.D.C. at page 29, 84 F.2d at page 876, quoting from Morgan v. Devine, supra, 237 U.S. at 632, 35 S.Ct. 712, 59 L.Ed. 1153). We explained the law so thoroughly and settled it so definitely for this jurisdiction in Sims v. Rives that it would be supererogation to say more here. In Berry v. United States, 1940, 72 App.D.C. 229, 113 F.2d 183, we applied this test to the two offenses of assault with intent to rape and threatening bodily harm, and held that they were distinct, citing Gavieres v. United States and Sims v. Rives.

Under the test stated, it is indisputable that the plea of autrefois convict in the instant case was bad. The same evidence would not sustain the two charges in question. To prove the charge under the second information of driving on the wrong side of the street it would be necessary-to show only that the appellee was on July 21, 1940, operating a motor vehicle in the District of Columbia on the left side of the street. Obviously this proof alone would not support conviction of the charge in the third information of operating a motor vehicle while intoxicated. Clearly also mere proof that the appellee on the date alleged was driving in the' District while intoxicated would sustain the charge under the third information, but it would not prove that the appellee was driving on the wrong side of the street as charged in the second. No authority is necessary to support the foregoing. See, nevertheless, State v. Sisneros, 1938, 42 N.M. 500, 82 P.2d 274, and People v. McGrath, 1928, 94 Cal.App. 520, 271 P. 549.

In support of Judge Newman’s decision sustaining the plea in bar, the appellee cites Landers v. State, 1935, 26 Ala.App. 506, 162 So. 550, and Trawick v. City of Birmingham, 1929, 23 Ala.App. 308, 125 So. 211. These are decisions of an intermediate appellate court i n Alabama⁶— the Court of Appeals — holding that if two offenses, though themselves separate and distinct as violations of distinct statutes, are nevertheless the outgrowth of one act, they constitute identical offenses within the meaning of the double jeopardy clause. These cases were apparently the basis of the decision and opinion of Judge Newman. A judge of the Police Court is not warranted in looking to decisions of the Court of Appeals of Alabama rather than to those of the highest appellate court' of his own jurisdiction for the law.

The brief of the appellee urges in further support of Judge Newman’s ruling that the plea in bar was good, that in the facts of the instant case there appears an agreement between the Assistant Corporation Counsel and the appellee for the withdrawal of the first information, to which the nolle prosequi was entered, involving the more serious charge of operating a motor vehicle while intoxicated, in consideration of a plea of guilty to the less serious charge in the second information of operating a motor vehicle on the wrong side of the street; the appellee urges that this agreement should be enforced by the court, and that as a result of it the District of Columbia was forbidden to file the third information. But the facts are barren of any express agreement to such effect. And in view of the essential aspect of a nolle prosequi as distinguished from a dismissal with prejudice, that the former does not forbid the filing of a second information on the samé charge (c.f. Wolff v. United States, 1 Cir., 1924, 299 F. 90), it would be unwarranted, without more, to hold' that there was an implied agreement. Moreover, such an agreement would not be binding. In re Whiskey Cases, 1878, 99 U.S. 594, 25 L.Ed. 399; Buie v. United States, 5 Cir., 1935, 76 F.2d 848, certiorari denied 1935, 296 U.S. 585, 56 S.Ct. 97, 80 L.Ed. 414. In the latter case where upon conflicting evidence such an - agreement was urged, the Circuit Court of Appeals, speaking through Foster, Circuit Judge, said:

“ . . ■. On this conflicting evidence it was for the District Judge to say whether the agreement was proven. But we deem that immaterial. It is elementary that an indictment may be dismissed and the defendant reindicted for the same offense, if he had not been put in jeopardy. Appellant cites a number of cases to the effect that the United States is bound by an agreement entered into by her counsel in a civil case; other cases holding that where revenue claims have been compromised and paid criminal prosecutions are barred, and other cases holding that where witnesses have been compelled to give testimony against themselves before an investigating authority immunity results. It would be useless to review these cases, as none of them are in point, and we are not aware of any decision, either controlling or persuasive, that would support the contention of appellant. We have no hesitancy in holding that the government was not estopped to prosecute appellant in this case regardless of whether an agreement was made as alleged. The assignment is without merit.” [76 F.2d at page 849]

The opinion of Judge Newman urges that where the statutory definition of offenses is such that more than one may grow out of the same transaction, it' is oppressive for the prosecution to file and prosecute several charges successively, that either all should be filed and disposed of at one time, or the prosecution limited to- the first it selects and presses to conviction. But the definition of offenses is for the legislative authority, and the determination of whether and when to prosecute for more than one growing out of the same transaction is a matter of policy for the prosecuting officer and not for the determination of the courts. Moreover, while under some circumstances it might be unfair to prosecute for more than one offense, under others the danger to the public from the conduct of an offender might be such as well to warrant his prosecution for all offenses committed. There is an insufficient disclosure of the circumstances of the instant case to warrant any conclusion, even if we had authority to reach one, as to whether the action of the Corporation Counsel’s office in the instant case was fair or not fair.

In accordance with the foregoing, the ■order of Judge Newman sustaining the ap-pellee’s plea in bar is set aside, and the case is remanded to the Police Court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

1 “No individual shall, while under the influence of any intoxicating liquor or narcotic drug, operate any motor vehicle in the District. Any individual violating any provision of this subdivision shall upon conviction of the first offense be fined not more than $500 or imprisonment not more than six months, or both. . . . Upon conviction of a violation of any provision of this paragraph the clerk of the court shall certify forthwith such conviction to the designated agent of the commissioners, who shall thereupon revoke the operator’s permit of such individual.” Act of Feb. 27, 1931, 46 Stat. 1427, c. 317; D.C.Code (Supp. Y, 1939) tit. 6, § 247(b).

2 According to a stipulation between the parties filed in this court an Assistant Corporation Counsel “entered a nolle proseque on Information No. 484,036 and in open court handed that Information to the Assistant Clerk of the Tráfüe Court . . .” on October 30, 1940, and on that same day handed to the same Assistant Clerk Information No. 497,300. But the stipulation shows also that Information No. 497,300 was filed in the police court on January 13, 1941, and that the docket of the police court in respect of Information No. 484,036 contains the following entry: “1-13-41 Nolle prossed in open court.”

3 “Vehicles shall be driven upon the right half of the highway, and the driver shall drive as closely as practicable to the right-hand edge or curb of the highway.” § 23(a), Traffic and Motor Vehicle Regulations for the District of Columbia, .amended June 6, 1939. .

The penalty for violation of this regulation is a fine of not more than $300 or imprisonment of not more than 10 days, or both. Id. § 69.

4 The bill of exceptions shows that by mistake the date was stated in, this information as October 21, 1940, but that the District of Columbia conceded that that was erroneous and that the correct date was July 21,1940.

5 The other two branches are the United branch. States branch and the District of Columbia

6 The highest appellate court in Alabama is the Supreme Court of Alabama.