United States v. Young , 1977 D.C. App. LEXIS 352 ( 1977 )

NEBEKER, Associate Judge:

Appellee was indicted on April 14, 1976, for threatening to injure the person and property of Jeanette Barney in violation of D.C.Code 1973, § 22-2307. On May 3, 1976, appellee moved to dismiss the indictment claiming that it did not allege all the elements necessary to constitute the offense, that it was ambiguous, and that it was insufficiently detailed. Subsequent hearings on appellee’s motion resulted in dismissal of the indictment. The United States appeals pursuant to D.C.Code 1973, § 23-104(c). We reverse.

Three central issues, as contained in ap-pellee’s motion to dismiss the indictment, are raised by this appeal. First, is specific intent to extort a necessary element of threats to injure another person under D.C. Code 1973, § 22-2307? Second, does the fact that appellee’s conduct may be punishable under D.C.Code 1973, § 22-507, which provides misdemeanor characterization for conduct identical to that proscribed by part of the felony statute, D.C.Code 1973, § 22-2307, require dismissal of the indictment? Third, are the allegations of the indictment sufficient to charge an offense under § 22-2307 inasmuch as the indictment did not contain the actual words of the alleged threat, nor did it allege that the threats were made knowingly and intentionally?

We find no such ambiguity or constitutional infirmity on the face of the statute or from the fact that another provision of the Code punishes identical conduct as would cast a shadow over either provision or impute an intent to extort as an element of the offense. Moreover, a defendant has no constitutional right to elect which of two applicable statutes will be the basis of his indictment. Such a choice is properly left to prosecutorial discretion. Finally, we find the indictment to have been sufficiently worded to charge an offense.

The first two factors which prompted dismissal of the indictment center around the fact that both § 22-507, a misdemeanor statute, and § 22-2307, a later-enacted felony statute, prohibit identical conduct, i. e., threats to do bodily injury.¹ The threats-. to-do-personal-injury overlap, according to appellee, is impermissible and creates an inherent ambiguity in application, necessitating an examination of legislative history to clarify what conduct was sought to be proscribed by each statute. The legislative history of § 22-2307, as interpreted by ap-pellee, in conjunction with the fact that the statute appears in that portion of the D.C. Code which pertains to extortion, suggests to appellee that the statute was aimed at extortion. Therefore, according to appel-lee, the trial court correctly held that this additional element must be alleged and proved under § 22-2307.

The trial court’s ruling was based on the erroneous premise that the existence of § 22-507 must mean that essentially different conduct was meant to be proscribed by § 22-2307. It was assumed that otherwise the statutes would suffer constitutional infirmity because of vagueness, ambiguity, or denial of equal protection/due process. It was also assumed that the two sections would provide disparate punishment for precisely the same offense and thus permit the prosecuting attorney to exercise unbridled discretion. Such conclusions are not warranted.

It is well established that where the evidence relied upon to prove a violation of a felony statute is identical to the evidence needed to show a violation of the misdemeanor statute, the felony statute is not rendered void for vagueness or unconstitutional in any other sense, nor does it require that the conduct be prosecuted as a misdemeanor rather than as the felony. Palmore v. United States, D.C.App., 290 A.2d 573 (1972), aff’d, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967); United States v. Coppola, 300 F.Supp. 932, 934 (D.Conn.1969). The defendant cannot complain merely because the charge against him is brought under the statute carrying the more severe penalty. United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Rosenberg v. United States, 346 U.S. 273, 294, 73 S.Ct. 1152, 97 L.Ed. 1607 (1953); Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964 (1965); Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956).

In Hutcherson, supra, the defendant was convicted of violating federal narcotics statutes. He argued on appeal that he was denied due process because he was indicted and convicted under federal statutes instead of under the District of Columbia Code. His point was that the offenses denounced by the federal and local statutes were identical and that he was entitled to be prosecuted under the latter because the penalty for violating it was less severe.² That court of appeals rejected this theory stating that the defendant had no constitutional right to elect which of two applicable statutes was to be the basis of his indictment and prosecution. That choice was to be made by the United States Attorney. Hutcherson v. United States, supra, 120 U.S.App.D.C. at 277, 345 F.2d at 967. Underlying this conclusion is the acknowledgment that there is no constitutional infirmity in the coexistence of statutes proscribing identical conduct. There is no substantial difference between the federal/District of Columbia statute situation posited by Hutcherson and the instant case in which the two statutes are both D.C.Code provisions.

The discretion to choose under which statute to prosecute is vested in the prosecuting attorney and the grand jury. If the facts show a violation of two or more statutes, an election may be made to prosecute under either. Berra v. United States, supra; United States v. Liddy, 542 F.2d 76 (1976); United States v. Shepard, 169 U.S.App.D.C. 353, 515 F.2d 1324 (1975); Deutsch v. Aderhold, 80 F.2d 677 (5th Cir. 1935). This discretion is necessarily broad. See Newman v. United States, supra. See also Fay v. Miller, 87 U.S.App.D.C. 168, 183 F.2d 986 (1950).

In the absence of an express statement of congressional intent, the courts are obliged to permit enforcement of both statutes. United States v. Shepard, supra, 169 U.S.App.D.C. at 365, 515 F.2d at 1336. Thus, it is not valid to argue that where the statutes cover identical conduct, the latter in time should effect a repeal of the former. Repeals by implication are not favored. The Supreme Court in Rosenberg v. United States, supra, 346 U.S. at 294-95, 73 S.Ct. at 1163, reasserted the rule that

“[w]hen there are two acts upon the same subject, the rule is to give effect to both if possible. . . . The intention of the legislature to repeal ‘must be clear and manifest.’ . . . It is not sufficient ... ‘to establish that subsequent laws cover some or even all of the cases provided for by [the prior act]; for they may be merely affirmative, or cumulative, or auxiliary.’ There must be ‘a positive repugnancy between the provisions of the new law and those of the old.’ ” United States v. Borden Co., 308 U.S. 188, 198 [60 S.Ct. 182, 183], 84 L.Ed. 181 [190 (1939)]. . . .

We find no such “positive repugnancy” as would operate to repeal the earlier statute —§ 22-507.

The language of both statutes is simple and direct. The words of the statutes should be construed according to their ordinary sense and with the meaning commonly attributed to them. United States v. Thompson, D.C.App., 347 A.2d 581, 583 (1975). If the meaning of a statute is plain on its face, resort to legislative history or other extrinsic aids to assist in its interpretation is not necessary.

It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms. .

Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise . [Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917).]

Finally, we reject appellee’s argument that § 22-2307 is in pari materia with § 22-2306 (which specifically refers to extortion), and that, therefore, the two sections should be read together as addressing extortion. It is true that subsequent to their passage both sections were placed by the codifier in the District of Columbia Criminal Code under Chapter 23, which is entitled, LIBEL — BLACKMAIL—EXTORTION. However, these sections, as passed by Congress in Title X of the Omnibus Crime Control and Safe Streets Act of 1968, were entitled, “Prohibiting Extortion and Threats in the District of Columbia”. See Püb.L. No. 90-351, 82 Stat. 238 (June 19, 1968). While certainly § 22-2307 would apply to extortionate threats, this equivalent rather than subordinate reference to extortion and threats reveals that Congress was proscribing threats as an offense in and of itself without the element of extortion as a requisite objective. Accordingly, § 22-2307 cannot be read as implicitly proscribing threatening extortionate conduct only.

We thus conclude that no specific intent to extort can be read into the statute as an element either for reasons of legislative history or because a misdemean- or statute proscribes identical conduct. Section 22-2307 does not suffer from vagueness, ambiguity, or constitutional infirmity on due process/equal protection grounds, and the indictment- may not be dismissed for these reasons.

As to the final issue, we find that the allegations of the indictment were sufficient to charge an offense. An indictment is required to perform two functions: (1) it should inform the accused of the charge against him by listing the elements of the offense charged; and (2) it should be sufficiently specific to protect the accused against double jeopardy. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). These criteria are met by the indictment in the instant case. There is no basis to hold that the indictment must charge that the offense was committed “knowingly and intentionally.” Such is implicit in the nature of the accusation of a general intent crime. The indictment followed substantially the language of the statute and, in so doing, adequately set out all the necessary elements of the offense. While such repetition of statutory language is not always sufficient to constitute an adequate indictment, see Russell v. United States, supra at 764, 82 S.Ct. 1038, the indictment also particularized the date of the offending conduct and stated the species of unlawful communication at issue, i. e., a threat. “Threat” has a particular meaning and distinguishes a particular class of language which is prohibited. Thus, the indictment adequately descended to particulars and was sufficient to inform and protect appellee. See United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1876). Any other lack or insufficiency in the indictment of which appellee might complain can adequately be cured by a request for a bill of particulars. See Super.Ct. Crim.R. 7(f).

In Bush v. United States, D.C.App., 215 A.2d 853 (1966), this court examined an information charging threats under D.C. Code 1961, § 22-507, and held that the information was sufficient even though the actual threat was not spelled out in the indictment.

The offenses with which appellant was charged were spelled out clearly on the faces of the informations. Modern pleading does not require the “prolix, laborious and redundant allegations, well known to an earlier day * * The absence of the particular facts constituting the offenses did not prevent the informations from charging the offenses. [Id. at 856; footnotes omitted.]

Since the specific threat prohibited under § 22-2307 is identical to § 22-507, it follows that an indictment merely setting forth “threat” is equally as adequate as the information in Bush.

We find the indictment in the instant case to have been sufficient in all respects. Accordingly, we reverse the order of the trial court dismissing the indictment, and remand with directions to reinstate.

So ordered.

1 . D.C.Code 1973, § 22-507, provides:

Whoever is convicted in the District of threats to do bodily harm shall be fined not more than $500 or imprisoned not more than six months, or both, and, in addition thereto or in lieu thereof, may be required to give bond to keep the peace for a period not exceeding one year.

D.C.Code 1973, § 22-2307, provides:

Whoever threatens within the District of Columbia to kidnap any person or to injure the person of another or physically damage the property of any person or of another person, in whole or in part, shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

2 . The rule of lenity, as set out in Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955), is not properly invoked in the present case because the penalty provision of § 22-2307 is clear. It is not rendered ambiguous by the different penalty provision of § 22-507.