Patler v. District of Columbia

QUINN, Associate Judge. Appellant was convicted by a jury of defacing the doors of an elevator in a private building. The information charged that appellant “did then and there wilfully and wantonly write, mark and draw a sign or figure thereon without the consent of the owner or proprietor thereof, contrary to and in violation of Section 22-3112, District of Columbia Code.” The evidence offered by the prosecution was circumstantial. Several errors are alleged but those unsupported by the record will not be considered. Appellant’s principal contention is that the evidence tended to show that stickers were “placed” on the doors of the elevator in question and therefore there was a variance between the information and the proof. 1 We find no merit to this contention. The information set forth the section of the Code under which prosecution was brought, and if its language was vague or misleading, appellant had the right to ask for further particulars. This was not done. While it would have been more accurate to charge that the stickers were “placed” on the doors of the elevator, a review of the record fails to show that appellant was taken by surprise or that his defense, which was a denial, would have been altered in any way. He does not claim that he was misled or deprived of any substantial right. 2 Appellant next charges that due to certain alleged contradictions in the testi *509 mony of two government witnesses as to the exact time the stickers were removed from the elevator doors, the evidence was insufficient to support a jury verdict. No authorities need be cited for the proposition that it was for the jury, not the court, to pass upon and determine the credibility of the witnesses, and to attach to their testimony the weight to which it was entitled under all the circumstances appearing from the evidence. We find from the record that the issue was fairly submitted to the jury and its verdict, being supported by the evidence, must stand. Affirmed. Footnotes [1] The stickers portrayed swastikas and read “We are back.” [2] Reed v. United States, D.C.Mun.App. 1953, 93 A.2d 568.