Proof showing merely the violation of the adjective, or permissive, provisions of the code set out in Subdivision (b) of Sec. 49-701, Idaho Code, which are merely procedural and are not in and of themselves prohibitory or unlawful, does not and cannot establish the commission of a public offense. Ex parte Moseley, supra; State v. Pfeifer, supra; People v. Banat, 39 Cal.App.2d Supp. 765, 100 P.2d 374. The court erred in holding that a prima facie showing of speed alone is sufficient to convict in a criminal case without proof of all essentials of the alleged crime, namely: unreasonable and imprudent driving; and in the face of the stipulation reciting that there were no circumstances other than speed.
It must therefore be determined whether there was reasonable cause to believe that defendant was committing an unlawful act or was committing a lawful act in an unlawful manner within the meaning of section 192 of the Penal Code. Section 510 of the Vehicle Code, the violation of which is a misdemeanor under section 763 of the code ( In re Johnson, 6 Cal.App.2d 654, 656 [ 45 P.2d 241]; People v. Banat, 39 Cal.App.2d Supp. 765, 768 [ 100 P.2d 374]; see Knox v. Pryor, 10 Cal.App.2d 76, 78 [ 51 P.2d 106]), provides that "No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property." A prima facie case of violation of this section arises if the speed of a vehicle exceeds the limits prescribed in section 511 "unless the defendant establishes by competent evidence that any said speed in excess of said limits did not constitute a violation of the basic rule declared in Section 510 hereof at the time, place, and under the conditions then existing."
In People v. Brown, supra, although the opinion therein does not expressly state that the dismissal was pursuant to section 1385, it appears safe to so assume, since the dismissal was on the motion of the prosecution following the return of an indictment for a felony based on the same assault, the court stated, "Hence, under the plain reading of the statute, the dismissal would have barred further prosecution upon a new charge for the commission of such misdemeanor." (See, also, People v. Smith, supra; People v. Banat, 39 Cal.App.2d Supp. 765 [ 100 P.2d 374], and People v. Ring, 26 Cal.App.2d Supp. 768 [ 70 P.2d 281].) The order is affirmed.
755 [ 67 P.2d 411]; People v. Smith (1939), 36 Cal.App. (2d) (Supp.) 748 [92 P.2d 1039]; and People v. Banat (1940), 39 Cal.App. (2d) (Supp.) 765 [ 100 P.2d 374], and cases therein cited.
Defendant's argument that the evidence does not support the conclusion that he violated the basic speed law is therefore burdened with the fact proven that he was driving at the rate of seventy-three miles per hour. [1] The defendant concedes that a speed in excess of forty-five miles per hour was (at the time involved) presumably unlawful, citing People v. Banat (1940), 39 Cal.App. (2d) (Supp.) 765 [ 100 P.2d 374], which so construes section 511, Vehicle Code.
Howard v. State, 151 Ga. 845, 108 S.E. 513 (1921); Empire Mutual Life Ins. Co. v. Allen, 141 Ga. 413, 81 S.E. 120 (1914); and State v. Lantz, 90 W. Va. 738, 111 S.E. 766 (1922). 60A C.J.S. Motor Vehicles § 290(2) (1969); Bush v. Southern Pacific Co., 106 Cal.App. 101, 289 P. 190, 193 (1930); George v. Smith, 105 N.H. 100, 193 A.2d 16 (1963); Gagnon v. Krikorian, 92 N.H. 344, 31 A.2d 49; Ex parte Daniels, 183 Cal. 636, 192 P. 442 (1920); People v. Smith, 36 Cal.App.2d 748, 92 P.2d 1039 (1939); People v. Banat, 39 Cal.App.2d 765, 100 P.2d 374 (1940); Lohman v. District of Columbia, 51 A.2d 382 (Mun. Ct.App. 1947); State v. Smith, 29 R.I. 245, 69 A. 1061 (1908).
They raise rebuttable presumptions, which may be overcome by evidence. State v. Trimming, 89 Idaho 440, 406 P.2d 118 (1965); see, People v. Banat, 39 Cal.App.2d Supp. 765, 100 P.2d 374 (1940). Driving over the posted speed limit merely creates a presumptive violation of the basic speed law, i.e., the legislature has expressed its intent that speeds in excess of the prima facie limits be considered evidence of speeds greater than are prudent and reasonable and that such driving upon a public highway, at such speed, endangers the life, limb or property of another.
Morrison v. Flowers, 308 Ill. 189; Wallace v. Yellow Cab Co., 238 Ill. App. 283; City of Cleveland v. Keah, 105 N.E.2d 402 (Ohio); Commonwealth v. Cassidy, 95 N.E. 214 (Mass.); People v. Lloyd, 178 Ill. App. 66; People v. Sumwalt, 178 Ill. App. 357; People v. Banat, 100 P.2d 374 (Calif.). Upon proof of driving at a speed in excess of the posted speed limits a rebuttable presumption is raised that the statute has been violated, and this presumption is sufficient to establish a prima facie case on the part of the State. The defendant may then introduce evidence to attack the basic fact upon which the presumption is based, that the defendant was driving at a speed in excess of the posted speed limits, or the defendant by his evidence may show that the conditions existing at the time and place of the arrest with reference to traffic, condition of the roadway, etc. were such that he would be taken out of the purview of the statute.
A dismissal for any cause by a municipal court, including a dismissal in reliance upon Pen. Code, section 1385, is appealable by the People so long as the defendant has not been placed in jeopardy. (Pen. Code, section 1466; People v. Baxter (1953), 119 Cal.App.2d 46, 50 ; cf. People v. Ring (1957), 26 Cal.App.2d Supp. 768 ; People v. Banat (1940), 39 Cal.App.2d Supp. 765 .) In Penal Code, section 1469, the powers of this reviewing court are stated: "Upon appeal by the people the superior court may review any question of law involved in any ruling affecting the judgment or order appealed from, without exception having been taken in the trial court. ... The superior court may reverse, affirm or modify the judgment or order appealed from, and may set aside, affirm or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial.
the Ringleman Chart as published by the United States Bureau of Mines" (People v. International Steel Corp., 102 Cal.App.2d Supp. 935 ; "driving drunk" under section 501 Vehicle Code (People v. Haeussler, 41 Cal.2d 252 ; People v. Dingle, 56 Cal.App. 445 ); "reckless driving" under section 505 Vehicle Code (People v. Smith, 36 Cal.App.2d Supp. 748 ); "driving automobile while under the influence of narcotics and other drugs" under section 506 Vehicle Code (People v. Berner, 28 Cal.App.2d 392 ); the words "as to indicate wilful and wanton disregard" as used in Vehicle Code 505 prior to its amendment (People v. Steel, 35 Cal.App.2d Supp. 748 ); the same words under the new statute (People v. Young, 20 Cal.2d 832 ); "speed greater than is reasonable or prudent," under Vehicle Code, section 510 (Ex Parte Daniels, 183 Cal. 636 [21 A.L.R. 1172]); stating also the general principle involved (People v. Banat, 39 Cal.App.2d Supp. 765 ), with citations (People v. Smith, 36 Cal.App.2d Supp. 748 ), citing many cases; the words "trade dispute" and "labor disturbance" (People v. Smith, 133 Cal.App.2d Supp. 777 ); "driving at a speed greater than is reasonable and proper," or "at such rate of speed such as to endanger the life or limb of any person, or the safety of any property" (Ex Parte Daniels, 183 Cal. 636 [21 A.L.R. 1172]); "unreasonable waste of natural gas" (People v. Associated Oil Co., 211 Cal. 93 ); "due caution and circumspection" as used in Penal Code, section 192, relating to manslaughter (People v. Crossan, 87 Cal.App. 5 .) We believe that research would discover many more but further citations would, in our opinion, be superfluous.