*1 findings judge and therefore of the trial PER CURIAM. clearly findings say are cannot the we appellants, were these cases In judgment appealed erroneous. Hence the project construction subcontractors upheld. prime con- abandoned which was Affirmed. enforce completion, seek to tractor before alleged balance mechanic’s liens price un- remained contract which completed expended had after the owner by 38-104, work, permitted C.D. for here cases are Code These is made second time. Reference our first state-
ment of the facts and issues.1 finishing that, Appellant, CEPHUS, owner claimed R. Earl prime contractor work after necessary it, it had been abandoned America, UNITED STATES unpaid expend balance more than the Appellee. price time of abandon- at the contract No. 17712. ment, was there as a which result of Appeals Court of were in which fund the subcontractors District of Columbia Circuit. The latter claimed entitled share. Argued June erroneously had included the owner computation $4,375 al- sum of Sept. Decided legedly paid to subcontractor another replacing previ- equipment he had ously installed, furnished and but later tortiously removed; that, with that had eliminated, was than
amount there more enough hands to left the owner’s
satisfy aggregated their which liens $4,000.
about held, alia, inter
We amount
paid wrongdoing subcontractor doing already what he do bound to regarded part could not as a finishing expense of On re- work. mand, the District Court the task had determining amount, any, paid wrongdoer. the owner After
hearing court held evidence the paid
amount so instead of $800
$4,375 appellants; as claimed
that, result, unexpended por- as a price
tion of the contract which the
claiming subcontractors are entitled to ratably Judgment having
share $660. accordingly,
been entered the lienholders
again appeal. Although there conflict in the support it contained Supply Baylor, U.S.App.D.C. 73,
1. National Brick & Co. v. *2 Gillcrist, Washington,
Mr. Walter E.
(appointed by
D. C.
Court), with
Carey, Washington,
whom Mr. Edward L.
C.,D.
brief,
was on
appellant.
Atty.,
Mr.
Pryor,
William C.
U.
Asst.
S.
with
Acheson,
whom Messrs. David C.
Atty.,
Q.
U. S.
Frank
and Paul
Nebeker
Renne,
A.
Attys.,
Asst. U. S.
on
were
brief,
appellee.
Before Bazelon,
Judge,
Chief
and
Washington
Judg-
and
Weight,
es.
Judge.
BAZELON, Chief
Appellant
in-
and a co-defendant were
for unauthorized
motor
dicted
of a
use
(D.C.Code 22-2204).
joint
vehicle
aIn
appellant’s
denied
motion
trial the court
acquittal at the
the Govern-
ment’s case.1 Thereafter the co-defend-
ant, testifying
behalf,
re-
his own
tending
prove
lated facts
in-
his own
guilt.
appellant’s
Appellant
nocence and
wife,
called
then
provided
two witnesses—his
who
alibi,
mother,
and his
sought
impeach
co-defendant.
jury
guilty,
found both defendants
and
imprisonment
was sentenced to
years.
months
for sixteen
application
to four
His
for leave to
in forma
pauperis
“denied
as frivolous”
Appellant’s subsequent
District Court.
implicit
1. We think that denial
saying
saying
grant
I am not
I
here.
-will
going
it,
arguments
statement
the court:
“I am
I
bear
it.
will bear
jury.
to submit
it
you
In the mean
on it. You
convince me that
are
while,
go
thoroughly,
I
teetering
will
into it
right.
more
I am
it.
I am not
the motion to
set aside the verdict as to
I
submit
it to
satisfied.
So
Cephus
they
guilty.
find him
happens.”
I don’t
and we will see what
Cephus
want
misled
what I am
granted
over unwarranted
extension
to this court
of this waiver
opposition
apply
the
torney.
At
doctrine to
the circumstances
Coppedge
of this
case.
L.Ed.2d
safeguards
greatest
One
*3
(1962)2
system
under
of
individual
our
justice
contends
appeal appellant
requirement
is the
that
In this
prosecution
prima
was
must
a
establish
that
case-in-chief
Government’s
guilty
facie case
of
its own
insufficient
evidence before
to sustain a verdict
may
put
erred defendant
and that
court
be
to his defense.
therefore the trial
denying
judgment of
in
motion for
opposed
is
“Ours
the accusatorial as
acquittal.
agree. The Government’s
We
inquisitorial system.
,
reported
witnesses
that a car was
testified
system society
our
Under
carries
garage
missing
on
a dealer’s service
proving
against
charge
burden of
was
1962,
13,
June
the co-defendant
that
the accused not out of his own mouth.
driving
that
arrested
night,
the vehicle
while
case,
must
It
establish its
not
fingerprints
that one of several
interrogation of the accused even un
found on
left ventilation
the outside of the
judicial
der
safeguards, but
evi
appellant
appellant’s,
window
that
independently
through
dence
secured
knowledge
of
after his arrest denied
investigation.”
skillful
[Watts
automobile,
he claimed
and that
Indiana,
49, 54,
338 U.S.
69 S.Ct.
to have
since before
seen co-defendant
1347, 1350,
alleged
use.
the date of
unauthorized
5
(Frankfurter,
J.)]
alone,
Based
that evidence
Accordingly
29(a)
of the
Rule
beyond
a reason
could
have found
provides
of Criminal Procedure
Rules
guilty.3
appellant
able doubt that
acquittal
judgment of
motion for
a
granted
on
“after the evidence
however,
Government,
con
The
is
if the evidence
side is closed
either
required to consider
that we are
tends
a
De-
to sustain conviction.”
insufficient
evidence, and not the Government’s
at
a motion
nial
such
determining
judgment
alone,
whether
immediately
is not
evidence
required.
says
It
acquittal
nowis
Nevertheless,
the defend-
reviewable.6
ordinarily deemed
have
defendant is
evidence
if he introduces
then
ant
rests
his motion
waived
nothing to the Government’s
when, which adds
evidence
close of the Government’s
motion,
Govern-
chooses
denial of
after
on
his own
be reviewed
behalf.4
case-in-chief
introduce evidence
ment’s
think, however,
would
an
that it
be
from conviction.7
We
68,
723,
nied,
had been
after
67 S.Ct.
91 L.Ed.
note
329 U.S.
We
y2
custody
(1946).
trial and
1 months before
627
of over
trial —a total
months after
11
Attorney
Report of the
Gen-
also
ap-
pending
released
12 months —he
Poverty
and the Ad-
eral’s Committee
recognizance.
peal on his own
of Justice 10
ministration
U.S.App.
States,
Curley
81
neither a final
denial
decision
6. The
389,
229,
denied,
cert.
331
160
D.C.
appealable under 28 U.S.C. 1291
§
1850,
837,
1511,
L.Ed.
91
67 S.Ct.
U.S.
course,
interlocutory
nor, of
an
decision
rehearing denied,
869, 870,
331 U.S.
67
appealable
U.S.C. 1292
under 28
1729,
L.Ed.
91
1872
S.Ct.
read the Government’s concession
7. We
U.S.App.D.C.
Supreme
Court’s decision
4. Hall
United
and the
161,
166,
1193,
Hemphill
657,
E.2d
4 A.L.R.2d
853,
1509,
denied,
(1941) (per
U.S.
68 S.Ct.
L.Ed. 1106
cert.
S.Ct.
61
curiam),
denied,
rehearing
52(b), F.R.Crim.P.,
L.Ed.
and Rule
839, 840,
repudiating
93 L.Ed.
the notion
renewal
U.S.
Ladrey
(1948);
motion at the end of the case is
the
sary
neces
U.S.App.D.C.
gain appellate
de-
cert.
review of the suf-
Difficulty arises where the
inadequate
defendant
hope
evidence
that de-
has
introduces evidence which
fendants
supply missing
gap
filling
incidental
effect of
seriously
rule
limits the
appellate
the Government’s case. If the
accused
prima
prosecution prove
to have the
court
must limit
the evi-
its review to
facie
before he
to his
dence at the close of the Government’s defense.11
it will
ac-
direct
Jersey
A New
rejected
court in 1916
quittal
though
even
there
sufficient
the waiver rule in criminal cases on the
competent
of the en-
evidence at the close
ground that:
tire case to sustain
a conviction.
“the
civil rule
*4
prevents acquittals
waiver doctrine
in
open
criminal trials is
to
criti
such cases.
that, by
cism
ruling
of a
force
that
elaborate
few decisions which
wrong
made, testimony
when
justify
attempt
it on
the waiver rule
to
ought
that the defendant
not to have
loop-
ground
defendant’s
required
give
may
been
at
to
all
be
hole-plugging
harmless
renders
evidence
wrongful
laid
hold
to
sustain
original
error in the denial
ruling by
which was
he
to
motion,8
volun-
or that a defendant
give
perilously
it. This
near
comes
estopped
tarily
is
introduces evidence
compelling the accused to convict
*
argu-
* *
efficacy.9 These
of its
from denial
”?12
objection
ments do not meet the
Nevertheless,
jurisdictions, includ
most
acquit-
willingness to ask for
defendant’s
consistently
ing
circuits, have
fol
Federal
is not
evidence
on the
tal
rule;13 and the Su
lowed the waiver
preme
gamble
prediction
willingness
on a
to
Court,
in a
from the Ninth
case
find
appellate court will
or
that the
Circuit,
provided
dictum
at least a
has
Moreover,
insufficient.10
quotation
supporting
that evidence
as the
it.14 But
danger
imported
suggests,
the waiver
under
from civ
the rule was
there is
without consider-
may
pursued with
il into criminal trials15
prosecutions
rule
denied,
939,
rehcaring
U.S.
S.Ct.
71
340
ficiency
references
Onr
488,
opinion