Opinion
No. 31620.
April 8, 1935.
1. STATUTES.
Criminal statutes are construed most strongly against state.
2. AUTOMOBILES.
Evidence that accused, while drunk, was riding on front seat of his automobile which servant was driving, without proof that accused controlled its operation, held insufficient to make case for jury in prosecution for operating automobile while drunk (Code 1930, section 5579).
APPEAL from the circuit court of Simpson county.
HON. EDG. M. LANE, Judge.
Fletcher Terry was convicted of operating a motor vehicle while drunk, and he appeals. Reversed and rendered.
W.M. Lofton, of Mendenhall, for appellant.
The defendant is not charged with causing this car to be operated while he was in a state of intoxication, and, in fact, could not be, for the reason that section 5579, Code of 1930, does not make that an offense, but the law is violated only when the party himself operates the car; but if that was the law, he could not be convicted in this for the reason that it is not so charged. Then, again, a conviction could not be upheld for the reason that there is nothing in the state's testimony to show that this defendant had anything to do with the operation of the car, but if such was the law, before a conviction could be upheld, it would be necessary for the state to show beyond every reasonable doubt, that the negro was driving the car at the rate of speed and in the manner that he was driving, under the imperative orders of this defendant and this has not been shown.
There was nothing for the jury to pass on and so the peremptory charge requested by the defendant to the jury to find him not guilty, should have been given, and the refusal of the court to grant the same constituted fatal error in this case.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The statute under which this prosecution was had is section 5579 of the Mississippi Code of 1930. It occurs to the writer hereof that this statute applies only to the person actually operating the motor vehicle and if this be true, then it seems that the trial court was without power to extend the statute to include this appellant, under the circumstances.
State v. Love, 150 So. 196; Sullivan v. State, 150 Miss. 542, 117 So. 734.
Appellant was charged and convicted in the court of a justice of the peace of Simpson county of the crime of operating a motor vehicle while drunk and fined one hundred dollars. From that judgment he appealed to the circuit court, where there was a trial de novo, resulting in a verdict and judgment of guilty and a fine of one hundred dollars. From that judgment he appeals to this court.
The statute under which the prosecution and conviction was had is section 5579, Code of 1930, which follows: "No person shall operate or attempt to operate a motor vehicle while such person is in a state of intoxication, or is in other respects incapable of properly and safely operating said motor vehicle, on any public highway, street, avenue or alley within this state."
As everybody knows, an intoxicated driver of a motor vehicle is a menace to the lives, limbs, and property of others. By the adoption of this statute the Legislature sought to reduce this menace.
The evidence for the state showed that appellant owned an automobile; that he was riding in the car while intoxicated, but that he was not driving the car himself; a negro servant was driving it, and appellant and the servant were sitting on the front seat. There was no evidence to show that appellant in his drunken condition was directing and controlling the operation of the car by the negro. For aught that appeared in the evidence to the contrary, the negro was operating the car independently of any direction or control by appellant. If the evidence had shown that, although appellant did not have his hands on the wheel, he was directing and controlling the operation of the car by the negro, there might be a different case, which we are not called on to decide now. Criminal statutes are construed most strongly against the state. The evidence fell short of showing that appellant either operated the car or controlled its operation. The result is that appellant's request for a directed verdict should have been granted.
Reversed, and judgment here for appellant.