54 A.2d 562 | D.C. | 1947
Appellant was convicted in the Criminal Branch of the Municipal Court under three separate informations. The first charged him with using premises at 1303 Fairmont Street, Northwest, for a purpose other than a single-family dwelling without first having been issued a “certificate of occupancy”; the second charged him with operating the same premises as a rooming house between June 14, 1946, and October 31, 1946, without a license; the third charged him with using the same premises as a rooming house without a license between November 1, 1946, and December 11, 1946. In the occupancy permit case he was fined $10 and ordered to serve 10 days in jail if the fine was not paid; and in each of the two license cases he was sentenced to a $100 fine or 30 days in jail in default of paying the fine. The sentences were ordered to run consecutively. Pie took an appeal as of right from the judgments in the two license cases, and we granted an application for allowance of appeal in the occupancy permit case.
Appellant has assigned a large number of errors. The facts necessary to a consideration of each of such assignments will be stated in connection therewith. In general, according to testimony by appellant, he acquired the premises in 1940 and obtained licenses to operate as a rooming house in 1941, 1942, 1943 and 1944. Pie also applied for an occupancy permit but never received one. In May 1945 an inspection by the health authorities disclosed certain violations of health regulations, and appellant has had no license since that time. After the charges were filed but before trial appellant made certain changes to conform to health regulations.
I
Alleged Invalidity of License Regulations
With .respect to the license charges appellant contends that he was not operating a rooming house because he had only six roomers and therefore required no license. This contention is based upon the fact that an act of Congress, Code 1940, § 5—312(b) defines a rooming house as a building in which rooms are rented and sleeping quarters provided to accommodate 10 or more persons not including the family of the owner or lessee. This provision, however, now contained in Chapter 3 of Title 5 of the Code entitled “Fire Escapes and Safety Provisions” was enacted as a separate statute and by its terms the definitions contained therein were restricted to such act.
The statutory provisions with respect to occupancy permits, health regulations and licenses were enacted in entirely different acts. By an act now codified as Code 1940, § 1—226, the Commissioners are authorized to make and enforce “all such reasonable and usual police regulations * * * as they may deem necessary for the protection of. lives, limbs, health-, comfort and quiet of all persons * * * within the District of Columbia.” The “General License Law” for the District of Columbia is contained in Code 1940, Chapter 23, § 47—2301 et seq. Section 47—2301 provides that no person shall engage in any business, trade, profession, or calling in the District of Columbia for which a license fee or tax is imposed by the terms of such statute without first having obtained a license so to do. A large number of businesses such as theaters, massage establishments, hotels, lodging houses for transients, etc., are listed in the statute itself as requiring licenses. Section 47— 2344 authorizes the Commissioners of the District of Columbia “when in their discretion such is deemed advisable” to require a license of other businesses or callings not listed in the chapter and which “in their judgment require inspection, supervision, or regulation by any municipal agency” and to fix the license fee therefor. Section 47—2345 authorizes and empowers the Commissioners to make any regulations that may be necessary in furtherance of the purpose
By these regulations entitled “Lodging, Rooming and Boarding House Regulations,” the Commissioners provided that no license to operate a rooming house be issued unless a certificate of the Health Officer is first obtained attesting that the premises are conducted in accordance with ■detailed standards and unless the Major and Superintendent of Police certify that the ■operator is morally qualified to conduct such a house. The detailed standards specify tests to be applied by the Health Officer before issuing his certificate. They include such items as overcrowding, lighting, heating, ventilation, the furnishing of clean bed•ding and bathrooms, and general safety and ■sanitation requirements.
While not directly applicable, it is of interest to note that Congress on December 2, 1941, adopted the District of Columbia Emergency Rent Act, Code 1940 (Supp. V), § 45—1601 et seq., and in Section 45—1607(b), as amended September 26, 1942, defined a rooming or boarding house as one in which living quarters are rented by the householder to more than four persons.
It seems abundantly clear that it was reasonable for the Commissioners of the District of Columbia to use a different definition of a rooming house with respect :to health and licensing provisions than was adopted by Congress with respect to fire escape regulations.
It has often been decided that the District of Columbia Commissioners are creatures of statute, possessing no inherent powers, and not constituting a municipal corporation, but are merely the executive agents of a peculiar form of municipal government created by Congress in which Congress has reserved to itself the power of general legislation and of municipal regulation.
We conclude that the District Commis
II
Estoppel
Under the heading of estoppel, appellant urges with respect to the occupancy permit case that he was never given an opportunity to correct conditions which led to the failure to- issue such a permit and that with respect to the second license case the conditions complained of had been cured prior to the trial, and hence that this case should have been dismissed by the trial court.
The prosecution for failure to obtain an occupancy permit was brought under the zoning law, Code 1940, § 5—401 et seq. The Zoning Regulations issued pursuant to that act prohibit the use of any building for any purpose other than a single-family dwelling until the Inspector of Buildings, upon written application, shall have issued a certificate of occupancy stating that such use complies with the requirements of the regulations and that the building complies with the regulations and the “building code for such use.” (Section XX, Zoning Regulations.)
The evidence produced by the District showed that appellant applied for an occupancy permit for these premises for use as a rooming house May 8, 1944, that such application was rejected June 19, 1944, and that no occupancy permit had ever been issued for the use of the premises as a rooming house. The building inspector testified that the reason the occupancy permit had not been issued in 1944 was failure of defendant to make the following changes : “fireproof transoms, fireproof furnace room ceiling, cover with metal jam and trim and inside face of furnace room door. Make door selfclosing. .Replace wallboard partition on (sic) basement with fireproof material.” Appellant admittedly knew of this rejection and the reasons therefor. He claimed some of them had been cured in 1945 but that he had been unable to obtain metal to cover the furnace room door be*cause of war conditions. He also claimed' that since he had heard nothing from the occupancy permit application for a long time he assumed that the law in that respect was no longer being enforced.
The information on this charge was filed December 11, 1946, and accused appellant of operating without an occupancy permit between June 14, 1946, and the date of the filing of the information.
It results that the evidence is undisputed that appellant did use these premises for a purpose other than a single-family dwelling without an occupancy permit between the dates specified, that he was notified as long-ago as June 19, 1944, why his application; had been refused and that in at least one-respect, fireproofing the door to the boilef room, he did not correct the condition complained of. We agree with appellant that-once an application has been made applicants are entitled to notice of action with-reasons therefor. Here the appellant was-given such notice and thereafter it became-his duty either to obtain an occupancy-permit or to cease the use applied for.
The same situation obtains with respect to the first license charge — of operating a rooming house without a license between June 14, 1946, and October 31, 1946. Under the General License Law, licenses-run from November 1, to October 31 of the succeeding year. The evidence showed that as early as October 19, 1945, a letter was sent to appellant specifying certain violations of health regulations; that on June 19, 1946, appellant first applied for a rooming house license for these premises for 1946, and therefore operated for a time without even applying .for a license; alsa that in June 1946 a notice was sent to appellant disapproving the application. He continued to operate during the remainder of such license year without a license. The testimony, therefore, clearly shows he had ample opportunity to correct conditions complained of before prosecution was begun.
Ill
Jury Trial
Appellant’s demand for jury trial was denied by the trial court. With respect to the occupancy permit case, it is his position that since he was charged with using the premises without an occupancy permit on June 14, 1946, and on other days between that date and the date of the filing of the information, and since the statute permitted a fine of $100 per day, a total fine of many thousand dollars might have bceri' imposed, and thus he was -entitled to a jury trial. With respect to the license cases, the penalty provided by the statute, Code 1940, § 47 — 2347, is a fine of not more than $300 or imprisonment for not more than 90 days. Appellant urges that since two informations charging violations of the License Act were filed against him at the same time, he could have been fined a total of $600 or imprisoned for a total of 180 days. He urges further that since the trial judge made the three sentences run consecutively and not concurrently the penalties were thereby made cumulative.
It is our conclusion that the trial judge ruled correctly in denying appellant a jury trial. Code 1940, § 11 — 616. Although the three cases were consolidated for trial, each charged a separate offense, and the maximum penalty which could have been imposed in the occupancy permit case was $100, and was $300 or 90 days in jail in each of the license cases. The imposition of sentences to run consecutively does not result in a cumulative sentence.
IV
Former Acquittal
In connection with the charge of operating the premises without an occupancy permit appellant filed a plea in
We believe the trial court correctly overruled the plea in bar. The zoning statute provides that violations of the zoning regulations may be punished by a fine of not more than $100 for each day that the violation continues. The offense charged was a continuing one and each day’s use of the premises as other than a private dwelling without an occupancy permit was a new offense. It is well recognized that an acquittal in a trial for an offense which is a continuing course of conduct bars a second information charging the commission of the same offense prior to the beginning of the first prosecution but not for a similar offense after disposition of the first case.
V
Alleged Illegality of the Sentence
Appellant contends that the sentences imposed were illegal because he was-ordered imprisoned. This assignment of error is utterly without merit. The record shows clearly that the jail sentences were only to take effect if the fines were not paid. This method of sentencing is specifically authorized by D.C.Code 1940, § 11—606. It does not constitute a jail sentence but is only a necessary method of enforcing payment of fine.
VI
Opportunity to Defend
Appellant urges that the information charging him with operating a rooming house without a license between June 14, 1946, and October 31, 1946, was not properly before the court and hence that he had no opportunity to defend himself on that charge. In support of, this contention appellant in his briefs makes several statements not in the record, but apparently the basis for the claim is that when he was arraigned on February 26 this particular charge was not referred to. The other charges were not heard on that day but were continued to the next day to enable appellant to obtain counsel. On February 27 he elected to serve as his own counsel. At that time he objected to being arraigned on the disputed charge on the ground that it had not been before the court the day before. The trial court then told him that all three charges were to be tried and proceeded to have appellant arraigned on all three charges, reading each of the informations to him. Appellant refused to plead to any of the informations, and thereupon
VII
Refusal of the Court to Permit Appellant to Speak Before Passing Sentence
There is nothing in the record showing whether appellant is a lawyer, but he conducted his own defense skillfully and persistently, with many detailed references to legal precedents. After the Government had closed its case, he testified at length, concluding by saying, “I think I am through.” Thereafter the assistant corporation counsel stated he would submit the case without argument, but appellant exercised his right of arguing the case. Following such argument the assistant corporation counsel replied and thereafter appellant made a further detailed argument. His statements had to do not only with questions affecting his actual guilt but with reasons for not obtaining the required permit and licenses. The court then ruled on the legal question of whether appellant had conducted a rooming house and announced that he would study the transcript of the testimony, would take the case under advisement, and would notify appellant when he was ready to dispose of it. The case was called again on April 12, with appellant present, and the court announced that no more testimony or argument would be allowed and proceeded to find appellant guilty of each of the charges and pronounced sentence. After a brief discussion between appellant and the court as to the penalties imposed, appellant for the first time suggested that the court had not permitted him to say anything before pronouncing sentence. He now assigns such refusal as error, although in his brief he concedes that this is not “fatal error in misdemeanor cases.”
Rule 12(a) of the Criminal Division of the Municipal Court provides that “Before imposing sentence the Court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.” This is a salutary rule. Although it has often been held that allocution is not necessary in misdemeanor cases,
Refusal of Leave to Introduce Further . Testimony
The decisive issue in the' occupancy permit case was whether appellant was operating without such a permit. The Government closed its testimony in this case after' evidence that no occupancy permit had been issued and that the issuance was denied because of non-compliance with several building regulations, including “fireproof furnace roof ceiling” and “replace wallboard partition on basement with fireproof material.” In answer to a question by appellant on cross-examination, the Government’s building inspector testified that he had visited the premises on two occasions in January 1947, that the boiler room had not been fireproofed and that there were holes in the plaster in the ceiling. Appellant himself testified that he had looked up his records the morning of the trial and had found that he had fireproofed the boiler room m accordance with regulations in May 1945 and stated the cost of the work. Fie did not, however, produce such records at the trial. In his concluding argument on the same day appellant called attention to the discrepancy between his testimony and the testimony of the building inspector and added, “I want to continue this case (the occupancy permit case) if you are not satisfied with my testimony and let Mr. O’Connell come out there and look at it again. I think he will see that it has been fireproofed in accordance with the regulations.” The case was taken under advisement by the court from February 27 until April 12. On April 12, the date set by the court for disposition of the case, appellant for the first time filed a motion saying he had been taken by surprise by the building inspector’s testimony and asking leave to call two additional witnesses who had performed work in 1945 in the boiler room and had inspected the boiler room on April 10, 1947, and that the same was in perfect condition, and that there were no holes ■in the ceiling or elsewhere in the fireproofing. The trial court overruled this motion.
The reopening of the case for the taking of additional testimony after the case has been closed is a matter within the judicial discretion of the trial court, which will not be reviewed on appeal in the absence-of a clear abuse of discretion.
Judgment in each case is affirmed.
Code 1940, § 11—772(a).
Newman v. Willard’s Hotel Co., 47 App.D.C. 323.
La Forest v. Board of Commissioners, 67 App.D.C. 396, 92 F.2d 547, eer-tiorari denied 302 U.S. 760, 58 S.Ct. 367, 82 L.Ed. 588.
State ex rel. Altop v. City of Billings, 79 Mont. 25, 255 P. 11, 54 A.L.R.
United States v. Slobodkin, D.C.D.Mass., 48 F.Supp. 913, 917.
Harris v. Lang, 27 App.D.C. 84, 7 Ann.Cas. 141, 7 L.R.A.,N.S., 124; Harris v. Nixon, 27 App.D.C. 94, certiorari denied 201 U.S. 645, 26 S.Ct. 761, 50 L.Ed. 903.
District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843. See also Yeager v. District of Columbia, D.C.Mun.App., 33 A.2d 629.
Grissom v. State, 119 Tex.Cr.R. 494, 43 S.W.2d 580; cf. Skelly v. United States, 10 Cir., 76 F.2d 483; State v. Murray, 237 Mo. 158, 140 S.W. 899; 11 Wharton’s Criminal Procedure (10th ed.) § 1410.
Code 1940, § 5—401 et seq.
Ellingham v. State, 163 Md. 278, 162 A. 709; State v. Wood, 168 Minn. 34, 209 N.W. 529; State v. Johnson, 212 N.C. 566, 194 S.E. 319; Smith v. State, 55 Tex.Cr.R. 320, 116 S.W. 593. See Fall v. United States, 60 App.D.C. 124, 49 F. 2d 506, certiorari denied 283 U.S. 867, 51 S.Ct. 657, 75 L.Ed. 1471; District of Columbia v. Horning, 47 App.D.C. 413.
Anderson v. District of Columbia, D.C.Mun.App., 48 A.2d 710. See Harris v. Lang, 27 App.D.C. 84, 7 Ann.Cas. 141, 7 L.R.A.,N.S., 124.
3 McQuillin, Municipal Corporations (2d Ed. 1943) § 1138, p. 826.
Turner v. United States, 5 Cir., 66 P. 289; State v. Legan, Mo.Sup., 80 S. W.2d 122; People v. Kaminsky, 208 N.Y. 389, 102 N.E. 515; 113 A.L.R. 834; State v. Ball, 27 Mo. 324.
Gilbert v. Lachapelle, 75 U.S.App.D.C. 395, 127 F.2d 750.