Summary
In State v. Moore, 93 N.H. 169, 171, it was said with respect to the last cited act: "This latter statute changed the requirements necessary for the legal establishment of stop signs. It was the obvious purpose of the statute to obtain uniformity... and after its enactment all state-erected signs... were again `erected' to conform to the new requirements. It follows that the erection of the stop sign in 1936 (whether legally erected or otherwise) had no bearing on the legality of the situation in 1942."
Summary of this case from Beaule v. WeeksOpinion
No. 3471.
Decided April 4, 1944.
A complaint is defective which charges a defendant with a violation of a highway regulation as to stop signs posted under a statute which was later amended where the violation occurred subsequent to such amendment. A highway regulation requiring all "traffic" to come to a full stop at a stop sign has no application to pedestrians. An allegation in a complaint is insufficient if the defendant could have done all that the complaint accuses him of doing and yet not have committed an offense. A motion in arrest of judgment does not operate as a bar to subsequent proceedings for the same offense.
APPEAL, from the Municipal Court of Lebanon. The complaint alleges that the defendant "did not come to a full stop" when approaching the intersection of Heater Road and route 120, in Lebanon, at a stop sign erected under the direction of the Highway Commissioner in accordance with sections 5, 6, and 7 of chapter 91 of the Public Laws, as amended by section 1 of chapter 117 of the Laws of 1935. Trial by jury and verdict of guilty.
According to the undisputed evidence, the regulations controlling traffic at this stop sign were posted on November 26, 1941, and a return thereof filed in compliance with the provisions of chapter 42 of the Laws of 1941. The record of the posting is as follows:
"In accordance with section 5, 6 and 7 of chapter 91 of the Public Laws, as amended by section 1 of chapter 117 of the Laws of 1937, section 1, chapter 25 of the Laws of 1937, and chapter 42 of the Laws of 1941, a stop state highway sign has been erected at the intersection of Etna Road, north side, and Heater Road, the same being a state highway in the town of Lebanon. All traffic approaching said state highway at the above-named intersection shall first come to a full stop except when otherwise directed by a police or traffic officer or by any lawful traffic regulation, sign, device or signal and shall yield the right of way to vehicles traveling on said state highway. Any person violating the provisions of such posted rules and regulations shall be fined not more than one hundred dollars and shall be liable for all damage occasioned thereby. Frederick E. Everett, Commissioner."
The defendant introduced no evidence but, at the conclusion of the State's evidence, moved to dismiss the complaint on the ground that the evidence was at variance with the complaint, and because the complaint was insufficient to enable him to prepare his defense. This motion was denied and the defendant excepted. After the verdict and before the imposition of sentence, the defendant filed a written motion to arrest the judgment on the ground that the complaint was insufficient because it did not set out the offense plainly, fully, substantially, and formally (Art. 15, Bill of Rights); because it did not allege a violation of law that would support a conviction; because the evidence did not prove the charge as laid; because there was a variance between the charge and the evidence; because there was no allegation that the defendant was involved in traffic, or was any part or parcel of traffic, and because there was nothing in the complaint to indicate whether the defendant was traveling in a vehicle or was on foot.
This motion was denied and the defendant was allowed an exception. The defendant also excepted to the admission of certain evidence. Transferred by Blandin, J.
Hazen K. Sturtevant, County Solicitor, for the State, furnished no brief.
Joseph Moore (by brief and orally), for the defendant.
In the case of State v. Barrett, 42 N.H. 466, 470, it is stated in broad terms that an indictment which is bad on demurrer must be held insufficient on motion in arrest of judgment. Although a motion of this kind can be based only on matters of record, "the motion is not confined to the indictment alone" but "obtains if any part of the record is imperfect, repugnant, or vicious." 3 Wharton, Crim. Pro. (10th ed.), s. 1692. Thus, judgment will be arrested if the indictment does not charge an offense or if it contains allegations which make it evident that the grand jury in finding the indictment acted upon a law which had been repealed. United States v. Goodwin, 20 F. 237, 240. See Am. Law Inst., Code of Criminal Procedure, s. 369.
The complaint under consideration charges the defendant with the violation of traffic regulations promulgated and posted by the Highway Commissioner in accordance with the provisions of section 1 of chapter 117 of the Laws of 1935. At the beginning of the trial the Solicitor offered in evidence the record of the posting of those regulations in 1936 but withdrew the offer when the defendant objected to the introduction of the record on the ground that "that law" had "been repealed." The Solicitor then stated that he would confine his "activities" to the sign "now existing." He then introduced the record of the posting on November 26, 1941, of the document proclaiming the erection of a stop sign in accordance with the provisions of the act of 1941 and specifying the traffic regulations applicable thereto. The defendant excepted to the introduction of this record on the ground that it was "at variance with the complaint."
The act of 1935 was amended by the act of 1937 and again amended by the act of 1941. This latter statute changed the requirements necessary for the legal establishment of stop signs. It was the obvious purpose of the statute to attain uniformity in the matters of posting and return, and after its enactment all state-erected signs (including the sign described in the complaint) were again "erected" to conform to the new requirements. It follows that the erection of the stop sign in 1936 (whether legally erected or otherwise) had no bearing on the legality of the situation in 1942. The complaint, in our opinion, should have alleged a violation of traffic regulations established in accordance with the provisions of Laws 1941, c. 42, s. 1 (R. L., c. 107, s. 8).
But the complaint is defective for another reason. The regulations in force at the time of the alleged offense required all "traffic" to stop at the sign and yield the right of way to "vehicles" traveling on the state highway. The word "traffic" as thus used cannot fairly be said to include pedestrians. The complaint merely alleges that the defendant "did not come to a full stop" when approaching the intersection. This allegation is insufficient, for the defendant may have done all that the complaint accuses him of doing and yet not have committed an offense. The motion to arrest the judgment should have been granted. State v. Hoit, 23 N.H. 355, 359; State v. Abbott, 31 N.H. 434, 441; State v. Barrett, 42 N.H. 466, 470.
While this conclusion is based on technical requirements, it should be borne in mind that the allowance of the motion does not operate as a bar to subsequent proceedings but merely places the defendant in the position in which he stood before the present proceedings were initiated. 2 Wharton, Crim. Pro. (10th ed.), s. 1365; 15 Am. Jur. 102.
Judgment arrested.
All concurred.