101 So. 576 | Miss. | 1924
delivered tile opinion of the court.
Appellant, city of Pascagoula, charged appellee, E. F. Seymour, before the mayor’s court of said city with a violation of one of its traffic ordinances. The appellee was convicted, and appealed to the circuit court. On appellee’s demurrer in the circuit court to the affidavit charging the offense, the court held the demurrer well taken and quashed the affidavit. Thereupon appellant asked leave of court to amend the affidavit so as to cure the defect therein. Leave to so amend was denied, and final judgment entered discharging appellee, from, which appellant prosecutes this appeal.
The prosecution ivas under that part of section 8, chapter 116, Laws of .1916 (Hemingway’s Code, section 5781), prescribing the manner in which motor vehicles shall be operated at the intersections of public streets, avenues, and alleys in municipalities. This statute liad been adopted by appellant as one of its ordinances. It was sought to charge appellee with a violation of this ordinance, in that at a street' intersection in said city he passed to the left of the center of the intersection instead of to the right as required by the ordinance.
The affidavit upon which appellee was tried in the mayor’s court, and which was sought to be amended in the circuit court, charged him with violating said ordinance “by driving an automobile on Pascagoula street -in said city on the left side of the center of said street, and, in so driving on said street, did not keep to the right of the center óf the same, unlawfully against the peace and dignity of the city of Pascagoula.” In the circuit court it was sought to amend the affidavit, so as to properly charge appellee with violating said ordinance in driving his motor vehicle to thq left instead of to the right of a street intersection. That part of the ordinance on which the prosecution was based is in this language:-
“Any such person so operating, or causing to be oper
The trial court evidently was of-the opinion that the affidavit could not be amended in the circuit court, because it was so defective as to charge no offense. The court was in error. Coulter v. State, 75 Miss. 356, 22 So. 872; Brown v. State, 81 Miss. 137, 32 So. 952. In neither one of those eases .was the affidavit sufficient to charge the offense attempted to be charged. In the first case named, the court stated that the affidavit was so imperfectly framed “as that the fact constituting the gist of the offense was omitted.”
The affidavit in the present ease shows on its face that it was sought to charge appellee with an offense under said ordinance. That was enough to authorize its amendment.
Reversed and. remanded.