Elsbery v. State

• Decision Date: 21 December 1912
• Docket Number: 4,523.
• Citation: 76 S.E. 779,12 Ga.App. 86
• Parties: ELSBERY v. STATE.
• Court: Georgia Court of Appeals

76 S.E. 779

12 Ga.App. 86

ELSBERY v. STATE.

No. 4,523.

Court of Appeals of Georgia

December 21, 1912

Syllabus by the Court.

Allegations in an indictment which are too general and indefinite to constitute any crime may be treated as surplusage, if there are other averments in the indictment which sufficiently allege the commission of an offense.

The purpose of the act approved August 13, 1910 (Acts 1910, p 90), regulating the use of automobiles, is to protect pedestrians and others lawfully on the highways of this state against the consequences of the negligent and improper operation of automobiles. Construing the word "descent," as used in section 5 of this act, in the light of its context and the declared purpose of the act, it will be held to mean a declivity in the highway over which from ordinary human experience and observation, it would be deemed more dangerous to operate an automobile at an excessive rate of speed than upon level ground. Such a construction of the word "descent" does not make it so indefinite and uncertain in meaning as to render this provision of the act incapable of enforcement as a penal law.

Error from City Court of Polk County; F. A. Irwin, Judge.

Ernest Elsbery was convicted of operating an automobile on a public highway at an unlawful rate of speed, and brings error. Affirmed.

I. F Mundy, of Rockmart, for plaintiff in error.

J. A Wright, Sol., and E. S. Ault, both of Cedartown, for the State.

POTTLE J.

An indictment was returned charging the accused with a misdemeanor, in that he did on a day named unlawfully operate an automobile on a public highway "at a rate of speed greater than was reasonable and proper, having regard to the traffic and use of the said highway at the time, and did thereby endanger the life and limbs of the persons traveling said highway at the time, and *** did then and there approach a descent in said highway near Hill's Creek Church at a greater speed than six miles per hour, contrary to the laws of said state, the good order, peace, and dignity thereof." The accused demurred to the indictment on the following grounds: Because no violation of any valid statute of force in this state was alleged; because the word "descent," as used in the indictment, is too indefinite and uncertain; because the indictment is too vague and indefinite to set out any crime or the violation of any valid statute; because the rate of speed at which the car was being operated is not alleged; because it is not charged that the defendant did not have the car under control; because the word "descent" in the act approved August 13, 1910 (Georgia Laws 1910, p. 90), regulating the use of automobiles, is too vague and indefinite to be enforceable, and that to apply the act to every descent would be unreasonable and uncertain; because the indictment fails to allege the descent or rate of speed, or how, or in what way the car was not under control.

The court passed an order sustaining the demurrer in part, and striking from the indictment so much of it as alleged that the machine was being operated at a rate of speed greater than was reasonable and proper, and overruled so much of the demurrer as objected to the averment that the accused approached a descent in the highway at a rate of speed greater than six miles per hour.

1. Section 5 of the act approved August 13, 1910, regulating the use of automobiles, provides that no person shall operate a machine on any of the highways of this state "at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property and upon approaching a bridge, dam, high embankment, sharp curve, descent or crossing of intersecting highways and railroad crossings, the person operating a machine shall have it under control and operate it at a speed not greater than six miles per hour." In Hayes v. State, 11 Ga.App. 371, 75 S.E. 523, it was held that so much of section 5 of the act above referred to as undertook to make penal the operation of an automobile "at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property," was too uncertain and indefinite in its terms to be capable of enforcement. This ruling was followed in the case of Holland v. State, 11 Ga.App. --, 76 S.E. 104. In each of these cases, however, it was also held that the allegation adjudged to be too indefinite to set forth a crime might be treated as surplusage, if the indictment set forth a violation of any provision of the act of 19...