130 Misc. 612 | New York County Courts | 1927
This appeal is based merely upon the proposition that the finding of guilty is contrary to the weight of evidence and that the conviction was secured upon a misapprehension as to the law. Such claims have required a careful study of the evidence presented.
It appeared upon the trial without dispute that Work street is a north and south street intersecting at right angles Main street, which is an east and west street in the village of Falconer, town of Ellicott, N. Y.; that a traffic light had recently been installed at this street intersection; that on the northwest corner of this street intersection is located a gasoline station with appropriate pumps and equipment, there being a sidewalk, however, between said station and pumps and North Work street and between said station and pumps and-West Main street; that on the evening in question the defendant drove southerly on North Work street toward Main street; that as he approached Main street the traffic light which had previously been showing green changed to red, a signal for him to stop; that when this traffic light changed the defendant turned in across the sidewalk from North Work street and across the gasoline station property turning then southerly across the
In the argument of the appeal there has been some effort to sustain the conviction upon the proposition that the rate of speed at which defendant was proceeding was reckless and that his manner of driving was careless. Also that basis for the conviction migb,t be found in the fact that crossing sidewalks in the manner admitted endangered pedestrians. A careful examination of the testimony given would indicate that this appeal cannot be sustained on any of these propositions. The officer who made the arrest fairly admitted that he did not know precisely how fast the defendant was driving and his testimony indicated a rate of miles per hour which we could hardly term per se to be careless. None of the other propositions were urged upon the trial and they should not now be presented on appeal.
This arrest was made admittedly because the defendant evaded a red light by passing through private property across a corner thereby securing the benefit of the green light of the intersecting street. Such evasion of a red light is not prohibited by law and is not in itself reckless driving. The arrest was made upon the theory that such act in itself constituted negligence. The information charges that the defendant drove in a manner which was not careful and prudent by turning to the right at the traffic light on Main and Work streets when the light was red and driving through McCall’s service station and across the traffic then going east on Main street to get back on South Work street. The deposition which was filed by the officer who made the arrest contains the following: “ I told him to go back and wait for the green light and go through it and he said, do I have to? I said, either go back or I will take you in.”
It appears, therefore, that the sole theory of the arrest by the officer and of the trial of this defendant was that by driving onto private property and thereby avoiding a red light the defendant violated the law. There was no substantial evidence of other traffic on the street at that time or that any one was endangered
The case having been tried and disposed of on the one theory and a conviction having occurred the conviction may not now be sustained on some other theory. In other words, if the acts charged in the information do not constitute a crime the conviction may not be sustained because some other acts would have constituted the same crime. If the acts charged in the information did constitute a crime and there were merely a failure of proof this case should be sent back for a new trial but as we reach the conclusion that the acts stated do not amount to a violation of the law the conviction must be reversed and the case must be dismissed.
