Opinion
No. 30943.
April 16, 1934.
1. INDICTMENT AND INFORMATION.
Ordinarily, indictment need not allege point in county at which crime was committed, nor correct date of crime.
2. INDICTMENT AND INFORMATION.
Indictment alleging particular road within county on which defendant was charged with having driven motor vehicle while intoxicated held sufficient, without describing particular community or exact location on given highway (Code 1930, sections 5579, 5581).
APPEAL from Circuit Court of Itawamba County.
J.H. Brown, of Fulton, for appellant.
We contend that this crime is closely akin to the crime of wreckless driving on highways, and the court has held that in order for an indictment to be good, for the last named crime, it must allege near a certain point on the highway and we contend that this indictment should have shown where the crime was committed on the highway for the reason to give the defendant this information so that he might prepare his defense.
If the court should hold that this is not required in this kind of an indictment, then, the state could allege that the defendant was operating a car unlawfully and in a state of intoxication on the public roads in the county to be from twenty-five to seventy-five miles long which would require the defendant, in order to make out his defense, to summon the witnesses the entire length of the road. It is nothing but fair and just that the indictment should allege near what point on the highway the crime was committed in order to give the defendant an opportunity to prepare his defense.
Wm. H. Maynard, Assistant Attorney-General, for the State.
The statute under which the indictment was drawn is section 5579 of the 1930 Code of Mississippi.
As this indictment charges a statutory offense in the language of the statute it is sufficient.
Sullivan v. State, 67 Miss. 346, 7 So. 275; Bardwell v. State, 72 Miss. 535, 18 So. 377; Richberger v. State, 90 Miss. 806, 44 So. 772; Hinton v. State, 139 Miss. 513, 104 So. 354.
It is unnecessary in indictments of this kind to allege the exact place on the highway where the offense occurred, it being sufficient to allege that the offense occurred upon a public highway of the state.
42 C.J., "Motor Vehicles," sec. 1306.
The appellant was indicted for driving a motor vehicle upon a public highway in Itawamba county, while intoxicated; the charging part of the indictment being: "That Vernon Bennett, in said county, on the 5th day of September, A.D., 1933, did unlawfully operate a motor vehicle upon a public road, to-wit; the public road leading from Ryans Well to State Highway No. 25, while he, the said Vernon Bennett, was in a state of intoxication, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi."
This indictment was demurred to on the following grounds:
First. It does not charge place with any degree of definiteness so that the defendant may be informed of the charge and may prepare his defense.
Second. The indictment does not state the facts of which the unlawful operation of the car consists.
Third. Because the indictment does not charge that the alleged unlawful operation of the car resulted from a state of intoxication, or of what it did consist.
Fourth. Because there is no statute defining any such offense, and therefore no such offense as defined in the indictment exists under the laws of Mississippi.
Fifth. Because the things alleged in the indictment do not constitute an offense under the laws in the state of Mississippi.
The demurrer was overruled by the court below and the case proceeded to trial. The proof sufficiently showed that the appellant was driving a motor vehicle while intoxicated, upon the highway alleged in the affidavit; the part of the highway upon which the collision occurred being described in the testimony. The proof was ample to sustain the indictment.
The main argument here is that the indictment did not sufficiently describe where the vehicle was being driven, and that it is insufficient to allege upon what particular highway of the county or in the county the collision occurred, and that it must descend to the particular place on the highway.
Ordinarily, an indictment does not have to allege the point in the county at which a crime was committed, nor does it have to allege the correct date. The particular statute involved is section 5579, Code 1930, reading as follows: "No person shall operate or attempt to operate a motor vehicle while such person is in a state of intoxication, or is in other respects incapable of properly and safely operating said motor vehicle, on any public highway, street, avenue or alley within this state."
The penalty for a violation is provided for by section 5581, Code 1930, and is "a fine of not exceeding one hundred dollars for the first offense, and not less than ten dollars nor more than one hundred dollars, or imprisonment not exceeding ten days, or both for a second offense, and by a fine of not less than twenty-five nor more than two hundred dollars or imprisonment not exceeding thirty days, or both for a third or subsequent offense."
We think it is necessary and proper to allege the particular road within the county upon which the motor vehicle was being driven while the person driving or controlling it was in a state of intoxication. It is not necessary to describe the particular community or the exact location upon a given highway. The appellant was given the information that he was driving a motor vehicle while intoxicated upon a named highway, within a particular county. This is sufficient information for him to have prepared a defense and, if convicted, to plead a former conviction or a former acquittal.
We find no reversible error in the record, and the judgment of the court below must be affirmed.
Affirmed.