CARRANZO v. DISTRICT OF COLUMBIA. (Court of Appeals of District of Columbia. Submitted December 7, 1925. Decided January 4, 1926.)

No. 4328.

District of Columbia 22-Regulations establishing stands for street vendors held valid. Police Regulations of District of Columbia, art. 3, § 1, and article 12, § 2, designating particular stands for licensed street venders within congested section of city, and imposing penalty for violation, held valid.

provisions of article V of the Police Regulations relating to the several markets."

The "congested section," as defined in section 2 of article XII of the regulations, is bounded on the north by K Street Northwest, on the east by Seventh street, on the south in part by B and D streets and Pennsylvania avenue, and on the west by Fifteenth and It will be noted that Seventeenth streets. Center Market, being between Seventh and Tenth streets and north of B street, is brought within this congested section.

In Crane v. District of Columbia, 53

ROBB, Associate Justice. This is a writ of error to the police court of the District of Columbia, to review a decision of that court sustaining the validity of the so-called street venders police regulation, and convicting plaintiff in error, a licensed street vender, of selling peaches within the congested section of the city of Washington at a place other than that designated as a stand for licensed street venders.

The regulation in question (section 1 of article III of the Police Regulations of the District, as amended) reads in part as follows: "No licensed street vender shall be permitted to sell any article or thing from or upon any highway or public space within the 'congested section' of the city, as defined in section 2, article XII, of these regulations, except at the following locations, which are hereby designated as stands for licensed street venders." After locating five stands, on one side of five city blocks, the regulation continues: "Outside of the 'congested section' no licensed street vender shall occupy a stand or remain in any one place upon any of the highways or public spaces for a longer period than is necessary to making a sale after having been approached or stopped for that purpose, except upon such stands designated for that purpose by the commissionProvided, however, that nothing in this section shall be held to impair the

ers:

that the District commissioners were without authority to prohibit vending on the streets or public places, but that they were authorized to locate and change stands for licensed for the control of all street venders. The venders, and to pass reasonable regulations regulation in question was promulgated after it applies (a) to the congested section and the decision in the Crane Case. By its terms

(b) to all other sections. The sale giving rise to the prosecution in this case having occurred in the congested section, and the provisions of the regulation as to that section being separable from the general provisions of the regulation, we are not here concerned with such general provisions.

The record discloses that, prior to the promulgation of these regulations, there were from 65 to 100 push-cart venders in the business of vending fruits and vegetables within the congested section; that to permit such a comparatively large number of these pushcart venders to ply their trade generally throughout the most congested part of the city might have a tendency seriously to interfere with traffic and be a menace to the safety of the general public may not be doubted. Recognizing this, the commissioners located within this area five stands, and restricted the activities of such venders to those locations. On the record before us, we would not be justified in saying that this was an unreasonable exercise of power; that is, that it amounted to prohibition, rather than regulation. There is evidence to the effect that, in some instances, these stands have been used in whole or in part for the parking of automobiles; but, as it does not appear that any complaint was made to the authorities of the District, it may not be assumed that upon proper complaint those authorities would fail to prevent such encroachment upon these stands.

It results that the judgment is affirmed, with costs.

Affirmed.

Appeal from the Supreme Court of District of Columbia.

James De Camp was convicted of conspiracy to use the mails in furtherance of a scheme to defraud, and he appeals. Affirmed.

T. M. Wampler, of Washington, D. C., for appellant.

Peyton Gordon, of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice. Appellant, De Camp, appeals from a conviction under an indictment charging him and Sam. uel M. Acker, Anderson B. Lacy, Edwin C. Reed, and Ralph A. Howe, of the crime of conspiring to use the mails in furtherance of a scheme and device to defraud in connection with the promotion and sale of the capital stock of the Crystal Glass Casket Company, a corporation. Acker and Lacy were granted a severance. On trial, appellant was convicted, Reed was acquitted, and the jury disagreed as to Howe.

The first assignment of error is based upon the action of the trial court in overruling a motion for a directed verdict. It is insistconsistent with innocence as with guilt, and ed that everything proved at the trial is as numerous authorities are cited to the effect that, where this condition is disclosed, a motion for a directed verdict should be granted. We have carefully examined the testimony, as disclosed in the record in this case, and are satisfied that the evidence was amply sufficient to support the verdict of the jury, and the denial of the motion accordingly was without error.

[1] Error is assigned on the admission and exclusion of certain evidence. It appears that a reel of motion pictures was taken at the company's plant in Oklahoma, purporting to show the actual manufacture, in all stages, of glass caskets of different sizes. Defendants offered the reel in evidence, and moved the court for permission to exhibit the pictures to the jury by a moving picture

machine in the courtroom. The court denied the motion and declined to permit the exhibition to be made to the jury. One of the principal criminating charges of the government in this case was that glass caskets could not be made, and evidence was introduced to sustain this contention. It was to meet this evidence that the moving picture was pro

duced and offered. We think the court was right in refusing to admit the picture in evidence. A motion picture does not of itself prove an actual occurrence. The thing reproduced must be established by the testimony of witnesses. While the photograph may be a proper representation of the thing produced, yet the testimony of witnesses is required to verify the production. "Theoretically, of course, the moving picture can never be assumed to represent the actual occurrence; what is seen in it is merely what certain witnesses say was the thing that happened, and, moreover, the party's hired agents may so construct it as to go considerably further in his favor than the witnesses' testimony has gone, and yet any moving picture is apt to cause forgetfulness of this, and to impress the jury with the convincing impartiality of Nature herself. In view of these inherent risks of misleading, the trial judge may well deem a picture unsafe and inadmissible, when the introductory evidence has not convinced him that the risk is negligible." 2 Wigmore on Evidence, § 798. [2] Testimony was produced on behalf of the defendants tending to show the process of manufacture of glass caskets of different sizes and in all stages, and with this evidence before the jury it was for the trial court to determine whether a photograph or moving picture, such as was offered, was sufficiently verified as a proper representation of the process of manufacture as it actually existed. This court will not assume, on this record, to determine this question, and if, as contended by counsel for appellant, the testimony relative to the process of manufacture completely verifies the picture, then he cannot successfully claim injury from the refusal of the court to repeat this testimony to the jury by a moving picture display of the facts already in evidence. This is not the case of a photograph used to show the relative position of different objects, or to reconcile disputed issues of fact. The proof as to conditions of manufacture at the Oklahoma plant were testified to by witnesses presumed to be familiar with existing conditions; hence the admission of the motion pictures would have amounted to nothing more than a spectacular display of a situation based upon facts in evidence.

[3, 4] It is urged by counsel for defendant that he could not be found guilty of conspiracy, inasmuch as the codefendant Reed was acquitted, and the jury disagreed as to the guilt of Howe. It is true that a conspiracy can only exist between two or more persons,

and a single defendant could not be guilty of the crime. If the defendants in this case had been jointly tried, with the result of defendant De Camp convicted, and the acquittal of the remaining four, we might have a different case; but Acker and Lacy had obtained a severance, and had not been tried at the time of appellant's conviction. Howe had not been acquitted, and the result of a retrial cannot be conjectured. There is abundance of evidence in this record showing conspiracy between defendant and Howe, Acker, and Lacy, and the mere fact that these codefendants have not been tried will not avail this defendant. "Where three persons are tried separately, under an indictment charging them with conspiracy, and one is found guilty before the trial of the other two, the possibility that the others may be acquitted is not a sufficient reason for holding the judgment of conviction of the one irregular." Reg. v. Ahearne, 6 Cox, C. C. 6.

[5] Error is assigned in the admission of the testimony of an expert witness in respect of testimony relating to certain phases of making glass. The witness duly qualified as an expert and was asked the question: "Considering the known methods of making and annealing glass at that time, is it your opinion that glass burial caskets could be made and annealed successfully?" To which he answered: "It would, in my opinion, be hardly feasible to do it commercially." The question was relevant to the issue under consideration, and was propounded to a witness who had qualified as an expert on the subject. The objection was therefore without foundation, and properly overruled by the court.

[6] Error is assigned on the alleged misconduct of the district attorney in the cross-examination of the codefendant Howe. The witness was being interrogated as to the whereabouts of certain original documents which he last saw in the files of the Crystal Glass Casket Company. The district attorney, having elicited this answer, said: "Now I call on counsel to produce those originals." Counsel for appellant objected to the statement, and asked the court to withdraw a juror and continue the case. The court promptly denied the motion and cautioned the jury as follows:

"And, gentlemen of the jury, I will say to you that this matter that arose just as you were leaving, and which was continued with great animation after you left by counsel, looks in the direction of attempting to require a defendant to furnish information

against himself. Now, under our law and Constitution, that cannot be done. No defendant on trial for crime can be required to take the stand and testify against himself. or to produce papers or to give information which he controls tending to incriminate him or prove the charge against him. This is his full legal right, and there is to be no presumption drawn against a man of any kind, if he sees fit not to take the stand and testify. It is just as much his right to sit still and say nothing as it is to walk down the street, and he is not to be criticized if he exercises his right. And so it is with the papers. If he has got any papers which bear on the matter, he is entitled to keep them, and he is not to be presumed against or criticized if he does not."

This fully protected defendant from any possible prejudice which he might have sustained had the matter passed without this caution from the court. Reasonable intelligence must be accorded the jury, and it seems clear that the average juryman could not have failed to have understood and appreciated the force of the caution thus received from the court. Defendant was not compelled to take the stand by reason of this incident, since it occurred in the cross-examination of the codefendant Howe, and after the caution by the court there was nothing in the incident left which called for any explanation by defendant, or required his going upon the stand.

[7] Error is assigned relative to the refusal of certain prayers offered by counsel for defendant. It appears that identically the same prayers were offered by counsel for Reed, and allowed by the court. It is now contended that the refusal of the court to grant the same prayers on behalf of appellant amounted to a discrimination against him. This objection is totally without merit. The court was not called upon to duplicate his instructions, or to give the same prayer on behalf of each of the respective defendants. His charge was general with respect to each and all of the defendants. At the express request of counsel for appellant, the court stated to the jury: "That the instructions that were read here yesterday by counsel were instructions as to the law asked by counsel, and in most cases, if not all, conceded by the district attorney. Whether they were conceded or not, they were granted by the court as the instructions of the court on the law governing the case." This statement of the court was with direct reference to the

prayers which it was sought to have the court duplicate as to each of the defendants.

We deem it unnecessary to consider certain other objections made by counsel for defendant. We are convinced that he was accorded a fair and impartial trial, and that the evidence is amply sufficient to support the verdict.

The judgment is affirmed.

LARRABEE et al. v. BELL et al.

(Court of Appeals of District of Columbia. Submitted December 9, 1925. Decided January 4, 1926.)

No. 4270.

1. District of Columbia 19-Notice of hearing on petition to change zoning regulations, not signed by zoning commissioners individually, held sufficient (Zoning Act March 1, 1920, §§ 4, 5 [41 Stat. 500]).

Under Zoning Act March 1, 1920, §§ 4, 5, giving of notice by zoning commission of hearing ly ministerial, and notice given by chairman on petition to change zoning regulations is pureunder authority of regulation adopted by commission is sufficient, though not signed by commissioners individually.

2. Municipal corporations 62-Exercise of discretion cannot be delegated, though exercise of ministerial functions may be.

Exercise of discretion vested in officer, governing body, or commission cannot be delegated, though authority to exercise ministerial functions may be.

3. District of Columbia 19-Validity of proceedings to change zoning regulations held not affected by motive of commission (Zoning Act March 1, 1920, §§ 4, 5 [41 Stat. 500])..

Under Zoning Act March 1, 1920, §§ 4, 5, motive prompting commission to initiate proceedings to change regulations is immaterial, and fact that proceedings were instituted at inproperty affected, does not affect validity there

stance of architect, rather than owner of

of.

4. District of Columbia 19-Zoning commission's reasonable exercise of power cannot be controlled by courts (Zoning Act March 1, 1920, $$ 4, 5 [41 Stat. 500]).

Zoning commission's reasonable exercise of power to initiate proceedings to change regulations conferred by Zoning Act March 1, 1920, §§ 4, 5, cannot be controlled by courts.

5. District of Columbia 19-Property held unaffected by change in zoning regulations made after application for building permit (Zoning Act March 1, 1920, § 5 [41 Stat. 500]).

Property, plans for construction of building on which were on file with inspector of buildings, and as to which application for building permit was pending when change in zoning

Building, at 10 a. m., October 19, 1922, for the purpose of considering" the proposed changes. A hearing was had, and no one appeared in opposition to the proposed change. Accordingly, on the following day, the zoning commission authorized the change to be made.

A further order, after public notice and hearing, was made on November 22, 1923, amending the zoning regulations to increase the 55-foot height district to 60 feet, and the 85-foot district to 90 feet. This, of course, operated to raise the permissible height of the building here in question to 90 feet.

Suit for injunction by Ruth Estelle Loop Larrabee and others against J. Franklin Bell and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

C. E. Emig, Arthur Hellen, R. R. Perry, and Chauncey Hackett, all of Washington, D. C., for appellants.

F. H. Stephens, J. C. Wilkes, R. G. Donaldson, Hayden Johnson, C. L. Frailey, and V. E. West, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice. This case involves the orders of the zoning commission of the District of Columbia, fixing the height of an apartment house, to be erected at the corner of Massachusetts avenue and Twenty-First street, in the city of Washington.

On August 30, 1920, the zoning commission made an order placing the land in square 67, the property here in question, fronting on Massachusetts avenue, in the 85-foot height district, thus limiting the height of buildings to be erected on said land to not exceeding 85 feet in height. By the same order the land in the same square, fronting on Twenty-First street, was placed in the 55-foot height district.

On September 9, 1922, one J. M. Donn, an architect, having in charge the designing of the apartment house in question, made application to the zoning commission to extend the 85-foot height district to embrace the lots facing on Twenty-First street, in order that the land required for the apartment should all be brought within the 85-foot zone. Pursuant to Donn's request, public notice was given that a "public hearing would be held at the board room of the District

owners of property in the vicinity of TwentyFirst street and Massachusetts avenue petitioned the zoning commission to rezone Massachusetts avenue, between Dupont

Circle and Sheridan Circle, and place it in the 60-foot district. After public hearing, the petition, on March 21, 1924, was granted. On March 4, 1924, prior to the order rezoning this district, the appellee, defendant below, 2100 Massachusetts Avenue, Incorporated, made application to the inspector of buildings, for a permit to erect the building here in question, and on March 10th it made application to the engineer department of the District for a permit to excavate for the proposed building. Plans were filed in the office of the inspector of buildings on March 15, 1924. A permit was duly issued to defendant corporation on March 22, 1924.

The present action was brought to restrain the defendant corporation from erecting said apartment house to a height in excess of 55 feet. From a decree denying the injunction, except as to a small portion of the land, not here in controversy, this appeal was taken.

Section 4 of the Zoning Act of March 1, 1920 (41 Stat. 500), provides: "That after the public hearings herein provided for shall have been concluded, said commission shall definitely determine the number and boundaries of the districts which it is hereby authorized and directed to establish, and shall specify the height and area of the buildings which may thereafter be erected therein, and shall prescribe the purposes for which such buildings thereafter erected may or may not be used. Said district so established, shall not be changed except on order of said commission after public hearing. Said commission may initiate such changes, or they may be initiated upon the petition of the owners affected. Where the proposed change is to add a contiguous area to a use, height, or area district, the owners of at least 50