64 A.2d 310 | D.C. | 1949
Appellant was charged with an assault and with threats,
We have before us a stenographic transcript of the proceedings below. It shows that when the trial began at 3 :25 o’clock in •the afternoon the prosecuting witness and one or more other witnesses for the government, together with the defendant and several of his witnesses, were sworn. After the prosecuting witness .had been examined by the assistant United States attorney and had been cross-examined by defense counsel, possibly somewhat repetitiously, the •court remarked that it did not desire to interfere with any reasonable cross-examination but that it appeared that time was being wasted and that the court would adjourn at •4 o’clock until the next day. After further cross-examination, the court announced •that it didn’t want .to hear any more testimony from the government, unless rebuttal were necessary.
Defendant was then called to the witness stand and examined briefly by his own counsel, denying both the' assault and the threats, and was cross-examined more at length by the prosecuting attorney. When the prosecutor announced that he had no further questions, the court forthwith announced that it found the defendant not guilty of making threats but guilty of assault. After being informed by the prosecutor that defendant had no previous record, the court sentenced him to pay a fine of $50, or, in the alternative, to serve 30 days in jail. Counsel for defendant then said he had not heard what the decision was and when the court repeated the finding and sentence counsel immediately noted an appeal.
It is urged that defendant’s counsel was deprived of the opportunity of examining him again on redirect examination and was also deprived of the opportunity to call three additional defense witnesses who had been sworn at the 'beginning of the trial and were waiting in the witness room. It is the government’s position that such objections were waived by the failure of defendant’s counsel to call them to the attention of the court at the time of trial.
The rule invoked by the government is a familiar one, namely, that points not raised in the trial court will not be considered on appeal.
We have concluded that the principle of the latter rule applies in the present case. It is our opinion that defendant’s counsel was not given an opportunity to raise in the' trial court the points now assigned as error. In the usual trial, unless counsel themselves state that they have closed their respective cases, the court ordinarily makes inquiry on this point and also offers an opportunity for arguments to
Reversed, with instructions to award a new trial.
Code 1940, § 22 — 504.
United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555; Depina v. United States, 78 U.S.App.D.C. 31, 137 F.2d 673; Blodgett v. United States, 8 Cir., 161 F.2d 47.
Meadows v. United States, 65 App.D.C. 275, 82 F.2d 881.