People v. Winston

| N.Y. App. Div. | Feb 15, 1913

Woodward, J.:

The defendant was charged by an information with having “wilfully, knowingly and unlawfully” operated a motor vehicle, an automobile, “at a greater rate of speed than thirty miles an hour on said highway in violation of and contrary to section 287, chapter 374 of Laws of 1910, constituting chapter 25 of the Consolidated Laws of Hew York as amended.” There is no charge that the defendant operated his automobile at a speed in excess of thirty miles an horn* for a distance of one-fourth of a mile, and in the absence of such an allegation no crime is charged. Hor does the proof establish that the defendant in fact drove the car a distance of one-fourth of a mile in excess of thirty miles an hour. There was no violation of the statute, so far as the information or the testimony discloses, and it was error to hold that the conviction of the Court of Special Sessions was lawful. The judgment of the County Court of Westchester county should be reversed, and the fine paid by the defendant should be remitted. Jenks, P. J., Hirschberg, Burr and Rich, JJ., concurred. Judgment of the County Court of Westchester county reversed and fine paid by defendant remitted.