State v. . Mills

106 S.E. 677, 181 N.C. 530

Opinion

Walker, J.,

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 á 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 see. 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 under tbis section tbe court bas no power to strike out tbe offense charged in tbe lower court and insert an entirely new andvdifferent one. S. v. Taylor, 118 N. C., 1262; S. v. Vaughan, 91 N. C., 532; S. v. Crook, ib., 536. Tbe reason for tbe change in tbe statute extending tbe power of amendment, so as to embrace both civil and criminal cases, matters of substance as well as matters of form, and tbe power to amend before or after judgment, is perfectly obvious. It was because a justice of tbe peace was supposed to lack technical learning and skill in framing process and pleadings, whereas tbe lawyer who practiced in the Superior Courts, and tbe solicitor, were supposed to have both, and also tbe judge, and no barm could be done to tbe defendant, or to tbe opposite party, by making tbe process or pleading conform, in some degree, to tbe rules of law. It produced, at least, greater- certainty in legal procedure. No party could be prejudiced by it unless there was a departure from tbe original charge in tbe warrant. A clear analysis of tbis section (which was sec. 908 of tbe Code) is made by Justice Ashe in S. v. Vaughan, supra, showing that tbe exercise of tbe power is discretionary, and that tbe power itself, by gradual amendment of tbe statute, is very broad and finally was extended to matters of substance, whereas formerly it related only to matters of form and was confined to civil actions. Rev. Code, cb. 52, sec. 22; cb. 3; and tbe Code, sec. 908.

Applying these well settled principles to tbis case, we find that tbe original warrant, while somewhat informal in its allegations, embraced, in a general way, all that is charged in tbe amendment allowed by tbe judge, in tbe 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 tbe law. We should construe tbe original warrant with some liberality rather than with technical rigidity, and if tbe meaning of tbe law is there, it may be amended to express it more clearly in tbe appellate court, where tbe trial is anew. C. S., 4647. Tbe charges here are for reckless driving and overspeeding in tbe three several respects mentioned in tbe statute. Defendant was acquitted of tbe assault and properly convicted of tbe three acts of driving at an unlawful rate of speed. Tbe latter were committed on three different occasions and at three different places on tbe public highway and on tbe 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 tbe question of tbe power to amend tbe warrant, and tbe duty of tbe court to pursue a liberal policy with respect thereto, tbe following cases are pertinent: S. v. Cauble, 70 N. C., 62; S. v. Smith, 103 N. C., 410; S. v. Baker, 106 N. C., 758; S. v. Yellowday, 152 N. C., 793; S. v. Currie, 161 N. C., 276; S. v. Poythress, 174 N. C., 809; S. v. Price, 175 N. C., 804; S. v. Gillikin, 114 N. C., 832; S. v. Telfair, 130 N. C., 645; Stone v. R. R., 144 N. C., 220. The later eases, S. v. Hyman, 164 N. C., 411; S. v. Publishing Co., 179 N. C., 720. Tbe warrant in tbis case is quite as amenable, under tbe provisions of C. S., 1500, Rule 12, as were tbe warrants in any of tbe cases just cited. Tbe right to join tbe counts in one warrant is specially given, and tbe offenses are all of tbe same general class. C S., 4622. Eaeb count is in fact and theory a separate indictment, and a general verdict of guilty applies to each and every count. S. v. Toole, 106 N. C., 736. But here tbe jury has given, not a general verdict, but a separate verdict on each count. Tbe punishment was properly imposed, and each sentence could be made to begin at tbe expiration of a preceding one. S. v. Hamby, 126 N. C., 1066; S. v. Cathey, 170 N. C., 794; In re Black, 162 N. C., 458. Tbe defendant contends, though, that only one offense was committed, but we cannot accede to tbis proposition, as it is untenable if tbe evidence is to be accepted as true. Each of the three acts denounced by the statutes, driving at a rate of speed exceeding 25 miles, 18 miles, and 10 miles in tbe three several places mentioned constitutes a separate case of careless or reckless driving, tbe latter being but an intensive expression of tbe former, meaning rashly, negligent, or utterly careless, as if heedless, or as if indifferent to or regardless of consequences. As we have said, a person may drive carelessly, or even recklessly or heedlessly, without necessarily driving with excessive speed, though if be does overpass tbe speed limit, be violates tbe statutes by its express terms. Each of these offenses relating to speed have different elements, and it would be physically impossible to commit all of them at one and tbe same time, or at one and tbe same place, because they refer to different localities, which are separated from each other. Defendant could not be in two places at one and tbe same time, and certainly not in three. He might drive at an excessive speed, over 25 miles per hour, on a public highway in tbe country for only a half mile, and at all other times be may keep bis motor car within tbe speed limit, and yet be would violate tbe law, and tbe same would equally apply to a street in tbe residential or business section of a town, using only a part of the street for tbe unlawful purpose, and bis act would likewise be a violation of tbe statute. So that there were three violations in tbis instance.

Tbe motion to quash was properly overruled, as tbe statute cited allows a joinder of tbe counts upon which be was convicted. C. S., 4622 (Laws 1917, cb. 168). As to tbe jurisdiction: Tbe recorder’s court in Nash County has .concurrent jurisdiction with justices of tbe peace of offenses within tbe jurisdiction of such justices, and also juris diction of other offenses which are made petty misdemeanors. Public-Local Laws 1911, ch. 116. 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.