Opinion
No. 28676.
September 29, 1930.
1. CRIMINAL LAW. Affidavit in prosecution of automobile driver for failure to reasonably turn to right held sufficient, if defective, for purposes of res judicata ( Hemingway's Code 1927, section 6686).
Affidavit purporting to charge offense under Laws 1916, chapter 116, section 8, Hemingway's Code 1927, section 6686, after alleging that defendant was driving automobile on public highway and met another coming in opposite direction, stated that defendant then and there wilfully, unlawfully, recklessly, and negligently failed and refused to turn motor vehicle to the right of the center of highway sufficiently to allow and permit motor vehicle being driven and operated by prosecuting witness to pass without interference.
2. AUTOMOBILES.
In prosecution against automobile driver for failure to reasonably turn to right, evidence showing defendant exceeded speed limit was inadmissible (Hemingway's Code 1927, sections 6680, 6686).
APPEAL from circuit court of Pike county. HON.E.J. SIMMONS, Judge.
Jas. A. Wiltshire, of Magnolia, and Broom Gober, of Jackson, for appellant.
The affidavit charges no crime known to the law as it does not negative wrongdoing on the part of the driver of the other car.
State v. Speaks, 132 Miss. 159, 96 So. 176.
The court erred in the admission of evidence as to the speed of appellant's car. As there was another affidavit charging defendant with driving at an excessive rate of speed, therefore if he is to be tried on all of the affidavits then the evidence in this case should be confined to the particular thing of which he is charged, and if that isn't true then he should not hereafter be required to answer a charge of excessive speed.
W.A. Shipman, Assistant Attorney-General, for the state.
An indictment is sufficient which charges that the defendant, while operating a motor vehicle on a public highway met on such highway another person who was also driving a motor vehicle, and that the defendant wilfully, unlawfully, recklessly and negligently failed and refused to turn the motor vehicle which he was driving to the right of the center of said highway sufficiently to allow the motor vehicle being driven by the said other person to pass without interference.
Crysler v. State, 147 Miss. 40, 112 So. 687.
The speed of the car was merely incidental to the other features connected with the offense charged, namely, that he failed and refused to turn to the right of the center of the highway, etc. The speed at which the car was being operated by appellant at the time of the collision forms a part of the res gestae, and if the testimony shows, as it does, that the appellant was driving his car at an unreasonable rate of speed, then this is another aggravation of the offense charged in the affidavit.
McCoy v. State, 91 Miss. 257, 44 So. 814.
This is an appeal from a conviction for the violation of section 8, chapter 116, Laws 1916, Hemingway's Code 1927, section 6686, which provides that: "Wherever a person operating a motor vehicle, . . . shall meet on a public highway any other person . . . driving . . . any other vehicle, the person so operating such motor vehicle, . . . shall reasonably turn . . . to the right of the center of such highway, . . . so as to pass without interference." The case was begun before a justice of the peace, and when pending in the circuit court on appeal, the affidavit was demurred to, but no ruling appears thereon.
After alleging that the appellant was driving an automobile on a public highway and met another coming in an opposite direction, the affidavit proceeds as follows: "Did, then and there . . . wilfully, unlawfully, recklessly and negligently failed and refused to turn the motor vehicle which he, the aforesaid, J.S. Naylor, was driving and operating to the right of the center of said highway sufficiently to allow and permit the motor vehicle being driven and operated by the said Miss Doris McDaniel to pass without interference. . . ."
One of the appellant's contentions is that the affidavit is so defective that it fails to allege the commission of a crime. In support of this contention, it is said that the statute imposes the duty on the drivers of both automobiles when meeting on a public road to keep to the right of the center of the road, and if both do this, neither will interfere with the passage of the other; that this affidavit imposes a greater duty upon the appellant, in that it required him to drive sufficiently far to the right of the center of the road as not to interfere with the passing of the two automobiles, although the driver of the one he was meeting may not have turned to his right of the center of the road, but was driving on the appellant's right of the center of the road. It will not be necessary for us to express an opinion on this, for the affidavit, if defective, is sufficient for the purposes of res judicata.
Over the appellant's protest, the state proved that he was exceeding the speed limit at the time his automobile collided with the other. This evidence should not have been admitted. The speed of the automobile had no bearing on the charge that the appellant was driving on the wrong side of the road, and, if excessive, constitutes a separate crime under section 2, chapter 116, Laws 1916, Hemingway's Code 1927, section 6680.
Reversed and remanded.