110 A.2d 693 | D.C. | 1955
David Ingram and John Harrison appeal from a conviction on a charge of assault. Code 1951, § 22-504. (A third defendant to whom we shall have occasion to refer was convicted at the same trial but has not appealed.)
The assault was allegedly made on a female patron in a restaurant operated by defendant Harrison. She testified that the three defendants grabbed her, picked her
The first error assigned is the refusal to direct a verdict of not guilty. Counsel says “this was a case of rape or nothing and was so conducted by the prosecution.” With this extreme statement we cannot agree. The charge was simple assault and there was ample evidence to support the jury’s finding that such charge was proved. Even without the carnal aspects of the assault there was clear evidence of physical violence directed against the body of the complaining witness, in forcibly carrying her to the upper floor, in choking her, and.in forcibly removing some of her clothes. Appellants ask us to rule that they were entitled to an acquittal because the testimony of the complaining witness was uncorroborated.
Next we are asked to rule that the trial court erred in not giving the jury an instruction that they might draw adverse inferences from the failure of the government to produce two witnesses: the doctor who examined complainant on the night of the offense, and her husband. It is clear that this evidence would have been merely cumulative. The doctor could presumably have testified that his examination disclosed that complainant had had sexual intercourse; but defendant Simmons admitted having had relations with her that night. The doctor might also have told of the bruises and swelling on her body; but in that respect she had álready been corroborated by a police officer. Nor was her husband, to whom she had reported the assault, an essential witness; having no firsthand knowledge of the actual assault, there was nothing he could have added to the evidence already in the case. Clearly appellants were not entitled to an adverse witness charge. Curtis v. Rives, 75 U.S.App. D.C. 66, 123 F.2d 936; Brooks v. United States Fidelity & Guaranty Co., D.C.Mun.App., 109 A.2d 377; Krupsaw v. W. T. Cowan, Inc., D.C.Mun.App., 61 A.2d 624.
It is said there was error in failing to instruct the jury that no presumption was to be raised against defendant Ingram for his failure to take the stand. We have ruled that the court is required to give such an instruction when defense counsel requests it. In re Davis, D.C.Mun.App., 83 A.2d 590. No such request was made in this case.
Affirmed.
. Citing Kelly v. United States, 90 U.S. App.D.C. 125, 194 F.2d 150; Ewing v. United States, 77 U.S.App.D.C. 14, 135 E.2d 633, certiorari denied 318 U.S. 803, 63 S.Ct. 991, 87 L.Ed. 1167; Kidwell v. United States, 38 App.D.C. 566.
. In some cases the question has been raised as to whether such an instruction helps or hurts a defendant, and whether he may not be better off without it. Swenzel v. United States, 2 Cir., 22 F.2d 280; Becher v. United States, 2 Cir., 5 F.2d 45, certiorari denied 267 U.S. 602, 45 S.Ct. 462, 69 L.Ed. 808; see also, Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650; Bradford v. United States, 5 Cir., 129 F.2d 274; Kahn v. United States, 6 Cir., 20 F.2d 782; United States v. Glazer, D.C.Mo., 110 F. Supp. 558, appeal dismissed, 8 Cir., 205 F.2d 421.