Sisson v. United States

ROBB, Associate Justice. Appellants, defendants below, were convicted under an indictment in two counts, charging them with making an assault on the 20th of September, 1922, upon James R. Keeton, with a dangerous weapon; the first count describing the weapon as a piece of metal pipe, and the second count as a hard, blunt instrument. The first assignment of error is based upon the denial by the court of defendants’ motion, at the commencement of the trial, that the government be required to elect upon which of the two counts it would rely. In Fulton v. U. S., 45 App. D. C. 27, 41, we ruled that the prosecution seldom, if ever, is required to elect upon which of several counts, charging the same offense, but in various ways, it will stand. Since there are no special circumstances to take the case at bar out of the gener.al rule, the decision in the case cited is controlling here. The witness Keeton was permitted to state that the defendant Sullivan had been pointed out to him a few days prior to the assault, and this is assigned as error. Inasmuch as the witness positively identi•fied Sullivan as one of his assailants, it is difficult to perceive wherein the defendants were prejudiced by the challenged testimony. It is next contended that it was error to permit the government to show that the defendant Sullivan was picketing around Union Station prior to the'assault. Keeton had continued to work while union men were conducting a strike, and, as stated by counsel for defendants, there was a conflict “between unionism and nonunionism.” This testimony, therefore, had a direct bearing on the question of motive, and clearly was proper. During the testimony of defendant Dean he was asked, “if, while the strike was on, he advised and counseled the members of his union to use no violence towards men who were attempting to break the strike.” The court’s action in sustaining the government’s objection to this question is next assigned as error. In the first place, it does not appear what the answer of the witness would have been; hence we may not say that in any event the defendants were prejudiced. But, aside from that consideration, the testimony was inadmissible. The question before the jury was not as to what the defendant had advised prior to September 20, 1922, but whether he had participated in the assault upon that occasion. As the charge of the court fully and fairly stated the law applicable to the case, we do not deem it necessary to consider the prayers denied, especially since counsel have pointed out no error in tips connection. There are no other assignments of error that require notice, and we therefore affirm the judgment. Affirmed.