85 N.Y.S. 120 | N.Y. App. Div. | 1903
On the" 14th of July, 1903, the defendant was arrested by a police officer of the city of Hew York and taken before a magistrate where the following complaint was made against him:
“ City and County of New York, ss:
“ Arthur B. Ennis * * "* being duly sworn, deposes and says-that on the 14th day of July, .1903, at the city of Hew York, in the county of Hew York, William H. Ellis did operate, drive and cánsete be propelled an automobile or motor vehicle in and along Eighth avenue between One Hundred and Eleventh and One Hundred and Fourteenth streets in the city and county of Hew York at twelve o’clock,midnight of said day at a greater rate of ¡speed than eight*473 miles an hour, to wit, at the rate of eighteen miles an hour, then and there passing houses less than one hundred feet apart on a high- ■ way through the closely built portions of said city and county; that to operate or drive an automobile or motor vehicle at a speed greater than eight miles an hour is not permitted by any ordinance of the said city. Wherefore, deponent charges defendant with having violated Chapter 625 of the Laws of 1903 of the State of Hew - York and prays that he may be dealt with according to law.
“ ARTHUR B. EHHIS.
“ Sworn to before me this 15th day of July, 1903.
“ Zeller, City Magistrate.”
Upon this complaint he was held by the magistrate for trial in the Court of Special Sessions in the city of Hew York where he was duly arraigned, pleaded not guilty, tried, convicted and sentenced to pay a fine of twenty-five dollars or stand committed until the fine be paid, but not exceeding ten days, and in addition thereto was suspended, for the period of two weeks, from the exercise of his right to run an automobile. This appeal is taken from the judgment of conviction.
At the trial evidence was given sufficient to establish the truth of the charge made against the' defendant, viz., that at the time, place and under the conditions stated, he did operate an automobile at the rate of eighteen miles an hour, but it is urged that the judgment of conviction must, nevertheless, be reversed because neither the complaint charged, nor the evidence established, the commission of a crime under this statute. Whether or not defendant’s contention be correct depends, of course, upon the statute itself, which, so far as the same affects the question here presented, reads as follows:
Ҥ 163. * * * Ho ordinance, rule or regulation adopted by the authorities of any city in pursuance of this section or of any other law shall require an automobile or motor vehicle to travel at a slower rate than eight miles per hour Within the closely built up portions of such city, nor at a slower rate of speed than fifteen miles per hour where the houses in such city upon any highway are more than one hundred feet apart. * * *
“ § 169a. * * * Any person who shall violate any of the provisions of this statute, or of any speed ordinance adopted pur*474 suant hereto, upon conviction thereof shall, in addition to the penalties provided in section one hundred and sixty-nine-b, be further .punished for a first offense by a suspension of his right to run an automobile for a period of not less than two weeks.” (Laws of 1890, chap. 568, as amd. by Laws of 1903, chap. 625.)
■ It will be noticed that the statute does not fix any rate of speed at which an automobile may be run, nor does it confer upon the municipal authorities power to pass ordinances regulating the speed with reference thereto; on the contrary, it merely limits the right which the authorities now have under existing laws; In the city of New York the right to regulate the speed of automobiles on the public streets is conferred upon the board of aldermen by section 1454 of the charter, and the law of 1903 simply limits its power to the extent of preventing it from fixing a lower rate of speed for automobiles than eight miles per hour. This is all -that it does. It does hot purport to fix a rate of speed or make it a crime to exceed any particular rate. If this be true, then the complaint made against the defendant did not allege any facts constituting a violation of the. law, nor did the evidence offered show such violation, and he should have been discharged.
Indeed, the learned district attorney conceded upon the oral argument, as well as in the brief presented, that the portion of the judgment appealed from which prohibits the defendant from operating an automobile for a period of two weeks is erroneous, because it was not established that he. had violated any of the provisions of the act of 1903, but he nevertheless urges that the remainder of the judgment should be affirmed inasmuch as the proof established that the defendant had violated the provisions of section 666 of the Penal Code, a portion of which reads as follows; “ A person * * * who drives or operates an automobile or motor vehicle * * * upon any * * * public highway within any city * * * at a greater rate of speed than eight miles per hour, except where a greater rate of • speed is permitted by the ordinance of a city * * * is guilty of a misdemeanor and shall be fined, for the first offense, not exceeding the sum of fifty dollars.” , The proof did establish a violation of this section, but the trouble with the contention of the learned district attorney is that the defendant was not charged, tried, convicted nor sentenced for a violation of this
It follows that the judgment appealed from must be reversed and the defendant discharged.
Van Brunt, P. J., O’Brien and Laughxin, JJ., concurred; Patterson, J-., concurred in result.
Judgment reversed and defendant discharged.
