106 S.E. 677 | N.C. | 1921
Defendant was charged, before the recorder's court of Nash County, with "unlawfully, willfully, and feloniously driving an automobile recklessly, carelessly, and faster than allowed by law, and committing an assault and battery while so doing upon J. R. Wheless and others, with intent to kill, injure, and maim and damage said J. R. Wheless, contrary to the form of the statute," etc. He was tried upon the charge before the recorder's court and convicted and sentenced to six months imprisonment, and assigned to work on the public roads, and he appealed. The law alleged to have been violated is sec. 2618 of the Consolidated Statutes. The statute creates several different offenses as to driving motor vehicles on the public highways of the State; that it, driving recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highway, or so as to endanger the property or the life or limb of any person. The proviso is, that operating a motor vehicle at a rate of speed exceeding twenty-five miles per hour on any public highway outside the limits of any incorporated city *532 or town, or at a rate exceeding eighteen miles per hour in the residential portion of any city, or at a rate exceeding ten miles per hour in the business section, shall be a violation of the statute. After stating the case: The proviso was intended to define three acts which should per se constitute reckless or careless driving, and the commission of each of these acts is a separate and distinct crime. There may be other acts of reckless or careless driving within the meaning of all that goes before the proviso, as it was not the purpose of the Legislature to restrict reckless or careless driving to those acts enumerated in the first proviso of sec. 2618. A person may drive carelessly, or even recklessly, without exceeding the prescribed speed limits, and this case furnishes a clear illustration of it.
Now as to the power of amendment. It will be observed that in the original affidavit upon which the warrant was issued by the recorder, defendant was charged with reckless and careless driving, and with driving faster than is allowed by law, and also with the commission of an assault. The defendant appealed from the sentence of six months in prison, and in the Superior Court the presiding judge was requested to allow an amendment of the affidavit, and of the warrant which refers to it, so that the charge might be made with greater certainty and particularity and the defendant was thereby informed of the special accusation made against him. We do not see why he should complain of this, as it favored him, because it enabled him to make better preparation for his defense. But whether so or not, the statute gives the judge ample power to permit such amendments to be made. Its terms are very broad and inclusive, as will appear on its face. This is the law, it being in Consolidated Statutes of 1919, sec. 1500, Rule 12 (Revisal of 1905, sec. 1467, Rule 11), and reads as follows: "No process or other proceedings begun before a justice of the peace, whether in a civil or a criminal action, shall be quashed or set aside, for the want of form, if the essential matters are set forth therein; and the court in which any such action shall be pending shall have power to amend any warrant, process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be deemed just, at any time either before or after judgment." In the note to sec. 1500 (Rule 12) of Consolidated Statutes will be found the cases in which the exercise of the power in a very liberal manner has been upheld. It was contended that *533
under this section the court has no power to strike out the offense charged in the lower court and insert an entirely new and different one. S. v.Taylor,
Applying these well settled principles to this case, we find that the original warrant, while somewhat informal in its allegations, embraced, in a general way, all that is charged in the amendment allowed by the judge, in the form of a bill of indictment, each count specifying a distinct and different offense, but all embracing an assault, reckless driving, and driving at an excessive speed or a speed prohibited by the law. We should construe the original warrant with some liberality rather than with technical rigidity, and if the meaning of the law is there, it may be amended to express it more clearly in the appellate court, where the trial is anew. C. S., 4647. The charges here are for reckless driving and overspreading in the three several respects mentioned in the statute. Defendant was acquitted of the assault and properly convicted of the three acts of driving at an unlawful rate of speed. The latter were committed on three different occasions and at three different places on the public highway and on the streets of Spring Hope, defendant driving more than 18 miles in its residential and more than 10 miles in its business section. They were therefore separate and distinct crimes. On the question of the power to amend the warrant, and the duty of the court to pursue a liberal policy with respect thereto, the following cases are pertinent: S. v.Cauble,
The motion to quash was properly overruled, as the statute cited allows a joinder of the counts upon which he was convicted. C. S., 4622 (Laws 1917, ch. 168). As to the jurisdiction: The recorder's court in Nash County has concurrent jurisdiction with justices of the peace of offenses within the jurisdiction of such justices, and also *535 jurisdiction of other offenses which are made petty misdemeanors. Public-Local Laws 1911, ch. 176. The recorder's court had jurisdiction, then, of the offenses charged in the warrant, and also of those alleged in the Superior Court, by way of amendment. If there was no local statute, the general statute concerning recorder's courts would sustain the jurisdiction.
Reviewing the entire case, and record, we find that no error was committed by the judge at the trial.
No error.