Opinion
No. 35620.
October 23, 1944. Suggestion of Error Overruled November 13, 1944.
1. AUTOMOBILES.
City ordinance adopting statutory speed limits and, in absence of special hazards, making speeds in excess thereof prima facie unlawful and providing that violations thereof shall be a misdemeanor unless declared to be a felony, is valid (Code 1942, secs. 3660, 8176, 8275).
2. AUTOMOBILES.
The statute and ordinance adopting such statute making speed of automobiles in excess of speed prescribed therein prima facie unlawful does not exclude any valid defense (Code 1942, secs. 3660, 8176, 8275).
3. AUTOMOBILES.
Uncontradicted evidence that accused was driving more than 55 miles per hour in violation of city ordinance making such violation prima facie unlawful was sufficient, when undenied, to establish accused's guilt beyond reasonable doubt (Code 1942, secs. 3660, 8176, 8275).
4. CRIMINAL LAW.
Though burden of proof in criminal case never shifts from state, yet, when a distinct substantive matter is relied on as defense, burden of proof thereof rests on defendant.
5. CRIMINAL LAW.
The burden of proof in a criminal case is on defendant with regard to any independent, exculpatory fact.
6. AUTOMOBILES.
Uncontroverted evidence that defendant drove automobile at more than 55 miles an hour, in violation of city ordinance which adopted statutes making such speed prima facie unlawful, was sufficient to sustain conviction without further proof as to unreasonableness of such speed (Code 1942, secs. 3660, 8176, 8275).
7. CRIMINAL LAW.
The presumption of innocence does not impose on state burden of negativing distinct defenses not necessarily negatived in proving offense charged.
8. CRIMINAL LAW.
When prima facie case is made out by state and any defense thereto is shown by evidence to be naturally within personal knowledge of defendant and defendant fails to meet the prima facie case, his guilt is proved beyond a reasonable doubt.
9. AUTOMOBILES.
Affidavit charging that defendant willfully and unlawfully operated an automobile on city street at speed of more than 55 miles per hour, contrary to city ordinance, sufficiently charged violation of speed ordinance (Code 1942, secs. 3660, 8176, 8275).
10. AUTOMOBILES.
Instruction that, if evidence showed beyond reasonable doubt that defendant was driving automobile over 55 miles an hour on city street and that such speed was unlawful, jury should find defendant guilty of violating city speed ordinance making such speed prima facie evidence of guilt, was not erroneous where there was no attempt by defendant to overcome the prima facie case (Code 1942, secs. 3660, 8176, 8275).
ALEXANDER, J., SMITH, C.J., and McGEHEE, J., dissenting.
ON SUGGESTION OF ERROR. (In Banc. Nov. 13, 1944.) [19 So.2d 744. No. 35620.]1. CRIMINAL LAW.
Where sufficiency of affidavit charging violation of city ordinance was not challenged in trial court by demurrer or otherwise, and affidavit was amendable, if it needed amendment, affidavit would be held sufficient, in absence of a timely challenge on that issue.
2. CRIMINAL LAW.
Defendant could not complain that summons or notice to him charging violation of city ordinance adopting statutory speed limit did not contain any specification of speed at which defendant was charged to have driven, where defendant appeared and defended, making no such point in the trial court (Code 1942, sec. 8176(e)).
APPEAL from the circuit court of Neshoba county, HON. PERCY M. LEE, Judge.
W.T. Weir, of Philadelphia, for appellant.
Permitting the introduction of the alleged ordinance of the city was error.
Code of 1942, Sec. 3656.
The ordinance does not cover this alleged offense and does not authorize the procedure followed in this case.
Code of 1942, Secs. 3660, 8175, 8176, 8275.
An instruction for the city which in effect told the jury that if the defendant drove the automobile at a greater rate of speed than 55 miles per hour then they should find him guilty was error.
Bradford v. State, 158 Miss. 210, 127 So. 277; Bailey v. State, 176 Miss. 579, 169 So. 765; Shows v. State, 175 Miss. 604, 168 So. 862.
Hillman McCraw, of Philadelphia, for appellee.
The ordinance under which the case was tried was legally passed and is applicable to this case. This ordinance provided that all laws made misdemeanors by the statute of Mississippi were made violations of the city of Philadelphia and the penalties of the city are made the same as those under the state statute, provided that no sentence could be greater than one hundred dollars and costs and thirty days in jail. Under Section 3660 of the 1942 Code, the city of Philadelphia was authorized to pass this ordinance and said ordinance applied to the speed laws as much so as to any other law. This ordinance was passed in 1939 and the statute referred to in appellant's brief was passed in 1938 and was the statutory law at the time of the adoption and the passage of this ordinance. This ordinance complies with the law in every respect and the objection made to the ordinance was too vague and indefinite to point out to the court the defects of said ordinance. The appellant complains that the ordinance did not show that it had been published and further complained that there was no notation in said ordinance or ordinance book showing the book and page of the minutes when and where said ordinance was passed. There is no evidence of any irregularity as to the passage of said ordinance or in the minutes wherein said ordinance was passed and this court has held in the case of City of Corinth v. Sharp, 107 Miss. 696, 65 So. 888, that the ordinance is presumed to be valid where it is shown that it is recorded and registered in an ordinance book kept for that purpose. In the case of Bugg v. Houlka, 122 Miss. 400, 84 So. 387, it was held that an ordinance found in a book identified as the ordinance book of the municipality and in which all ordinances are kept and recorded in the absence of proof is presumed to be a valid ordinance. In the case at bar the ordinance introduced or the ordinance relied upon was shown to be recorded in Book 3 of the ordinances of the city of Philadelphia and recorded at page 17 of said book. There is no proof anywhere in this record to show any irregularity in the passage of said ordinance, or to show wherein this ordinance is not valid.
Appellant also complains that no note was attached to this ordinance showing the date of its passage. The ordinance itself shows that it was passed May 12, 1939, and the clerk attached thereto his certificate certifying its adoption on the date of May 12, 1939, and in the case of Jimmerson v. City of Oxford, 190 Miss. 884, 2 So.2d 152, it was held that the requirement of the note stating the date of its passage and reference to the number is merely directory and not mandatory; that failure to comply with this requirement has no effect on the validity of the ordinance. We submit beyond question that the ordinance was legal and regular and was properly admitted as evidence.
The instructions given by the court were proper for the reason that the rate of speed shown in the affidavit and also mentioned in the instruction was "greater than 55 miles per hour" and under Section 8176, Code of 1942, 55 miles per hour was given as the maximum legal rate of speed at which any person could drive a motor vehicle anywhere in Mississippi. There is no evidence in the record by defendant to overcome the prima facie case made by the city. Therefore, the rate of speed, having been shown by the evidence to be 70 or 75 miles per hour, without question is an illegal rate of speed. This Section 8176 was passed in 1938 and is a portion of Chapter 200 of the Laws of 1938. Under Section 8275 of Chapter 200 of the Laws of 1938, all violations of the provisions of this act, meaning Chapter 200 of the Laws of 1938, are declared to be misdemeanors unless such violations are by said chapter or other law declared to be a felony. This violation is not by said act made a felony and is a misdemeanor. It is further provided in Section 8275 that every person convicted of a misdemeanor for a violation of any of the provisions of said act, for which another penalty is not provided, on first conviction should be fined not more than one hundred dollars, or a sentence to serve not more than ten days in jail or both. Therefore, appellee contends that appellant is guilty and the penalty imposed is proper.
There is no evidence in this record as to what the writ contained and in the absence of evidence the writ is presumed to be legal. Appellee further contends that subdivision E, Section 8176 does not apply to this case.
Appellant was charged before the Mayor and Police Justice of the City of Philadelphia with violating a speed ordinance of the city. He was tried and convicted, and appealed to the circuit court. There was another trial in that court, resulting in his conviction and a fine of $100 and costs, from which judgment he appeals to this court. The questions of sufficient seriousness to call for discussion by the court are whether the following language of Section 8176, Vol. 6, Code of 1942, became a valid ordinance of the city by virtue of Section 8275, Vol. 6, Code of 1942, and an ordinance passed by the city under Section 3660, Vol. 3, Code of 1942; and, if so, whether the affidavit sufficiently charged the offense and, if it did, whether the instruction given for the city was erroneous, and whether the evidence was sufficient to convict. That part of Section 8176 involved is in this language:
"(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.
"(b) Where no special hazard exists the following speeds shall be lawful but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:
"1. Twenty miles per hour in any business district;
"2. Twenty-five miles per hour in any resident district;
"3. Fifty-five miles per hour under other conditions. Provided however, the speed limit of trucks shall be forty miles per hour."
Section 8275 is a part of the chapter on motor vehicles as is Section 8176. It provides in part that it shall be a misdemeanor for any person to violate any of the provisions of the act unless declared to be a felony under some other statute. Section 3660 gives municipalities the authority to pass a general ordinance declaring that all offenses under the penal laws of the state which are misdemeanors shall also be offenses against the city, town or village in whose corporate limits the offense may have been committed, the punishment to be imposed by the municipality as provided in the laws of the state with regard to such offenses against the state.
We are of opinion that it is very clear that the ordinance was authorized by the statutes referred to and was therefore valid. The statute makes the prohibited speed prima facie evidence of guilt, it therefore does not exclude any valid defense which might exist.
It will be observed that Section 8176 provides that a violation of the speed limits therein prescribed shall be prima facie evidence that such speed is unlawful. The evidence in this case showed without conflict that appellant was driving more than fifty-five miles an hour, in fact, from seventy to seventy-five miles. He did not testify nor did he offer any evidence to show any justification for driving over fifty-five miles an hour. Was his guilt established by the evidence beyond a reasonable doubt? In other words, was it necessary for the municipality to offer more than a prima facie case? We think not. Undenied by any evidence, the prima facie case became proof beyond a reasonable doubt. Although the burden of proof in a criminal case never shifts from the state, yet when a distinct substantive matter is relied on as a defense, the burden of proof rests upon the defendant. Bennett v. State, 100 Miss. 684, 56 So. 777. In Hosey v. State, 136 Miss. 5, 100 So. 577, the defendant was indicted for the unlawful sale of intoxicating liquor. He claimed immunity under Section 1792, Code of 1906, by reason of testimony forced to be given by him before the grand jury. The court held that the burden rested on the defendant to show that his testimony before the grand jury was not voluntary. The burden of proof in a criminal case is on the defendant with regard to any independent exculpatory fact. Page v. State, 160 Miss. 300, 133 So. 216. In Foster v. State, 52 Miss. 695, the decisions of the courts both ways are discussed ably and fully, and also in 32 Am. Jur. (Larceny) Sec. 140. The court held in the Foster case, quoting from the first paragraph of the syllabi (which fairly states the holding), that "the possession raises a presumption which calls upon the accused for explanation, and casts upon him the burden of accounting for the possession."
We are of opinion that the evidence was sufficient to convict. The Bennett case, supra, construed Section 1051, Code of 1906, which provides that every person having a husband or wife living, who shall marry again, except in certain cases later mentioned, shall be guilty of bigamy. The court held that the burden of proof was on the accused to prove that his second marriage was within the exceptions (Section 1052, Code 1906) and the state was not required to introduce evidence to show that the first marriage had been dissolved in order to make out a prima facie case against the defendant. And the court further held (quoting the fifth paragraph of the syllabi), "While it is the universal rule of evidence that every person is presumed innocent until proven guilty, this presumption does not impose upon the state the burden of negativing distinct defenses, not necessarily negatived in proving the offense."
We hold that when a prima facie case is made out by the state and any defense thereto is shown by the evidence to be naturally within the personal knowledge of the defendant, then if he fails to meet the prima facie case his guilt is proven beyond a reasonable doubt. "The presumption of innocence fulfills its purpose when it requires the state to first go forward with its evidence and establish a prima facie case. Thenceforth, it is solely a question of proof and the quantum thereof." 20 Am. Jur., Evidence, Sec. 223, and cases in the notes.
The affidavit is in this language: "Before me, W.M. Prince, Mayor and Police Justice of the City of Philadelphia, Mississippi, personally appeared Hugh Barrett, who makes oath that Sam White, on or about the 25th day of September, 1943, in corporate limits of said city did wilfully and unlawfully operate and drive an automobile on and over Byrd Avenue, a public street or highway, in said city, at a high and illegal rate of speed, to-wit: At a rate of more than 55 miles per hour, contrary to the Laws and Ordinances of said City in such cases made and provided."
We are of the opinion that the affidavit was sufficient to charge the offense. The charge in substance was that appellant was running over 55 miles an hour and that the speed was unlawful.
The instruction given for the city follows:
"The Court instructs the jury for the City that if you believe from the evidence beyond reasonable doubt that the defendant Sam White, about the time testified about, unlawfully did drive an automobile on and over Byrd avenue in the City of Philadelphia, Neshoba County, Mississippi, at the rate of more than 55 miles an hour, then you should find the defendant guilty as charged, and the form of your verdict should be: We, the jury, find the defendant guilty as charged."
It will be seen that it told the jury that if the evidence showed beyond reasonable doubt appellant was running over 55 miles an hour and that such speed was unlawful the verdict of guilty should follow. Crowell v. State, 195 Miss. 427, 15 So.2d 508, is not in point. In that case the defendant was charged with the crime of knowingly receiving stolen goods. To meet the prima facie case he testified himself and put on other witnesses. The court charged the jury for the state that it devolved upon the accused to give a satisfactory explanation of his possession of the recently stolen property in order to be relieved of any inference of guilt that might be drawn against him. In that case the court held that where the prima facie case is attempted to be overcome by evidence for the defense, including that of the defendant himself, such an instruction was not proper in a case of that kind. In the present case there was no attempt by the defendant or any witness for him to overcome the prima facie case.
We are of opinion that there was no error in giving the instruction.
Affirmed.
ON SUGGESTION OF ERROR.
Appellant again complains of the insufficiency of the affidavit. Its sufficiency was not challenged in the trial court by demurrer or otherwise, and being amendable, if it needed amendment, it must be held sufficient in the absence of a timely challenge on that issue.
Appellant complains further that the record does not show that the summons or notice to the defendant to appear and defend contained any specification of the speed at which the defendant is charged to have driven, and appellant points to subsection (e), Sec. 8176, Code 1942, which reads as follows: "In every charge of violation of this section the complaint, also the summons or notice to appear, shall specify the speed at which the defendant is alleged to have driven, also the prima facie speed applicable within the district or at the location."
It has been held in other states wherein the subsection is in this language that it applies to criminal and not to civil cases, 11 Uniform Laws Ann., p. 27, note 19, and we will assume, but without so deciding, that it applies to a municipal ordinance which has adopted the state's speed laws, yet the complete answer to appellant's contention, rendering it unnecessary to consider any other, is that he appeared and defended, making no such point in the trial court. 22 C.J.S., Criminal Law, sec. 144, p. 237.
Suggestion of error overruled.
DISSENTING OPINION.
We have for ordinary travel no speed limits in this state whose violation, per se, constitutes a crime. Sections 8060 and 8179 fix limits, under special circumstances, not here involved. Section 8176 prescribes the only general requirement. It is as follows: "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing." Section 8275 makes it a misdemeanor to violate the above provision. Therefore, the misdemeanor is driving at a speed greater than is reasonable and prudent. Section 8176 goes on thereafter to set out rules of evidence, one of which is that a rate over fifty-five miles is prima facie evidence of unreasonableness and imprudence. As such it is not substantive law, but a rule of evidence.
In this respect it differs from Section 8179, which makes a determination of a safety limit upon bridges and elevated structures conclusive evidence that the driver has exceeded the speed which can be maintained with safety to the structure. Here the contrast with Section 8176 is helpful. In the Section 8179 the offense is "[driving] a vehicle over any bridge . . . at a speed which is greater than the maximum speed which can be maintained with safety to such bridge. . . ." Once the speed is fixed by authority it is final and permanent, and as such becomes substantive law. Yet even here the act condemned and punished is conduct endangering the structure. The fixing of the safety limit dispels any uncertainty in the meaning of the words "speed which can be maintained with safety." Under Section 8176 a speed in excess of fifty-five miles per hour is merely "prima facie evidence" of imprudence and each case involves its own circumstances, surroundings, and conditions.
It is true, as stated in the controlling opinion, that violation of the speeds indicated are prima facie evidence that such speed is unlawful, but it is unlawful because and only if it is found to be not "reasonable and prudent." The jury is to convict not of speed but imprudence, and the instruction gives them no standard by which to measure the unlawfulneses. This error was pointed out in Dolan v. State, 195 Miss. 154, 13 So.2d 925. It is likewise correct to say that if a defendant fails to meet a prima facie proof of guilt, his guilt is proven beyond a reasonable doubt. But it is for the jury to find. This is shown by Gillespie v. State, 96 Miss. 856, 51 So. 811, 926, hereinafter referred to.
In this connection, the affidavit itself was demurrable. It merely alleged that the defendant operated an automobile at an illegal rate of speed, to wit: more than fifty-five miles an hour. He could have operated his car at sixty-five miles per hour without necessarily violating the statute of being guilty of a crime. On the other hand, violation could be proved by a speed less than fifty miles if the attendant conditions were considered. Therefore, it is not the exact speed, but the fact that it was unreasonable and imprudent. In fact, by Section 8178, an unreasonably slow speed is made a misdemeanor.
Therefore, the instruction, even as the affidavit, predicated the misdemeanor upon driving in excess of fifty-five miles an hour. He was, therefore, convicted not of the crime but of the evidence by which the crime may be proved. Upon a showing by the prosecution that the speed exceeded fifty-five miles an hour, the case was good against a motion to exclude because the judge was bound by the prima facie case which necessarily adduced proof of guilt beyond a reasonable doubt, as do all presumptions of guilt. In a civil case, the court could judge that a violation of the statute constituted negligence, and if the defendant offered no proof he could judge that under these circumstances the defendant was negligent, leaving the proximate cause open for the jury. However, in a criminal case he cannot judge peremptorily upon either guilt or any element thereof. If the defendant had offered proof on this issue, the judge could not instruct upon the presumption at all since it would then be for the jury upon the whole case. New Orleans G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Louisville N.R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397; Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677. Here, however, the defendant offered no proof. Therefore, the case is governed by Gillespie v. State, supra. The statutory presumption there involved was that the possession of appliances adapted to retailing was presumptive evidence of unlawful selling of liquor. There being no testimony for the defendant, the court instructed the jury that the possession of such appliances was presumptive evidence that defendant was selling liquor unlawfully, and if the jury believed from the evidence beyond a reasonable doubt that the defendant did sell liquors, they should convict. It would not have done for the court to instruct the jury that the defendant was guilty if she had in her possession such appliances. This was merely evidential. The offense was selling liquor. It is important, therefore, that the judge instructed them that while such possession was presumptive evidence, they must believe from the evidence beyond a reasonable doubt that the defendant sold liquors. The instruction in the instant case, however, states that the jury "should" find the defendant guilty if he drove his automobile at a rate of more than fifty-five miles an hour. The deputy Marshal testified that he himself drove faster than sixty miles in his pursuit. This would not make the marshal automatically guilty. Therefore, the defendant has been convicted not for the crime but for the evidence adduced to prove it. This was the trouble in Cutshall v. State, 191 Miss. 764, 4 So.2d 289. Compare the language in dissenting opinion in Cummings v. State, 194 Miss. 59, 11 So.2d 683, 687 (later confirmed by reversal, 319 U.S. 583, 63 S.Ct. 1200, 87 L.Ed. 1600).
It is a safe assumption that the jury, pursuant to the admonition of the instruction, convicted the appellant for a stated speed, instead of for a stated offense.
Smith, C.J., and McGehee, J., concur in this dissent.