People v. Grogan

• Citation: 260 N.Y. 138,183 N.E. 273
• Parties: PEOPLE v. GROGAN.
• Decision Date: 22 November 1932
• Court: New York Court of Appeals

260 N.Y. 138

183 N.E. 273

PEOPLE

v.GROGAN.

Court of Appeals of New York.

Nov. 22, 1932.

Prosecution by the People of the State of New York, against Michael J. Grogan, on a charge of reckless driving of a motor vehicle. Judgment of conviction, and defendant appeals.

Reversed, and information dismissed.

POUND C. J., and LEHMAN, J., dissenting.

Appeal from Nassau County Court.

William H. Daly, of Mineola, for appellant.

Elvin N. Edwards, Dist. Atty., of Mineola (Richard H. Brown, Asst. Dist. Atty., of Valley Stream, of counsel), for respondent.

CRANE, J.

The defendant has been convicted of violating section 58 of the Vehicle and Traffic Law (Consol. Laws, c. 71), which reads as follows: ‘Reckless driving shall include driving or using any motor vehicle or motor cycle or any appliance or accessory thereof in a manner which unnecessarily interferes with the free and proper use of the public highway, or unnecessarily endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor and shall be punishedby a fine not exceeding fifty dollars for the first offense; and by a fine not exceeding fifty dollars or imprisonment not exceeding six months, or by both such fine and imprisonment, in the discretion of the court, for a second or subsequent offense.’ This section was formerly section 287-b of the Highway Law (Consol. Laws, c. 25), being Laws of 1924, c. 360, § 24. Prior to 1924, the subject was covered by section 287 of the Highway Law, which read as follows: ‘Every person operating a motor vehicle on the public highway of this state shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person; provided, that a rate of speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent.’

In People v. Winston, 155 App. Div. 907, 139 N. Y. S. 1072, an information was held to be defective which charged the defendant with driving an automobile at a greater rate of speed than thirty miles as hour, but failed to state that it was for a distance of one-fourth of a mile. This present section, 58 of the Vehicle and Traffic Law, being former section 287-b of the Highway Law, attempts to provide for three separate and distinct acts which constitute reckless driving: (1) ‘Driving * * * in a manner which unnecessarily interferes with the free and proper use of the public highway;’ (2) ‘driving * * * in a manner which * * * unnecessarily endangers users of the public highway;’ (3) ‘reckless driving is prohibited.’ The commission of any one of these three acts is made a misdemeanor. They are separate and distinct offenses, and the conviction or acquittal of one does not prevent a prosecution for violating the others. State v. Andrews, 108 Conn. 209, page 215,142 A. 840.

Before passing to the attack which has been made upon this statute, we must keep in mind the distinction between a crime, to wit, a misdemeanor, and those minor offenses dealt with summarily by justices of the peace or magistrates, known as disorderly conduct, breach of the peace, etc. The distinction is clearly stated by the Appellate Division of the Fourth Department in Matter of Cooley v. Wilder, 234 App. Div. 256, 259, 255 N. Y. S. 218, 221. The court there said: ‘In passing, we may mention a third class of offenses which are neither felonies prosecuted by indictment and triable by a common-law jury (article 1, § 2), nor misdemeanors triable by courts of special sessions with or without the statutory jury of six (article 6, § 18), but petty offenses triable summarily by a magistrate without a jury. Within this category are cases of persons charged with intoxication, vagrancy, with being disorderly persons, etc.; also many cases of violation of municipal ordinances. Village Law, § 180; Second Class Cities Law, § 183. These minor offenses, below the grade of misdemeanors, have always constituted in our law a class by themselves. Tenement House Department of City of New York v. McDevitt, 215 N. Y. 160, at page 168,109 N. E. 88, Ann. Cas. 1917A, 455.’

In this appeal we are dealing with a misdemeanor tried before a Court of Special Sessions (People v. Monahan, 257 N. Y. 388, 178 N. E. 670), a crime, not one of those minor offenses dealt with summarily by magistrates. This crime is prosecuted in a Court of Special Sessions upon information instead of indictment. The information must set out the acts constituting the crime with the same clarity as an indictment; it must state the offense and the act constituting the offense. The information cannot be supplemented or pieced out by affidavits in the Magistrate's Court. People v. Zambounis, 251 N. Y. 94, 167 N. E. 183. With the exactness required of both indictment and information, the charge against the defendant in this case was under the third subdivision of section 58, as above enumerated. He was charged with reckless driving in the following words: ‘That on the 30th day of September, * * * one Michael J. Grogan did wilfully, feloniously and unlawfully operate a motor vehicle, to wit, an automobile, * * * at a rapid and dangerous rate of speed, * * * struck Willy-Knight coupé * * * on the right side * * * which then and there did endanger the life and limbs of the operator of the Willy-Knight coupé, and all such persons as should or might then and there pass along or over the said public highway, in violation of Article 5, section 58, of the New York State Vehicle and Traffic Law.’ The learned justice did not find the defendant guilty of the crime charged, that is, of reckless driving at a ‘rapid and dangerous rate of speed,’ but found that he did unnecessarily endanger the safety of users of the public highway and did unnecessarily interfere with users of the public highway. ‘Rapid’ is defined by Webster's Dictionary as ‘very swift, advancing with haste or speed, fast.’ This is what the defendant was charged with, but the charge was not proved. The information not only was obliged to state the crime charged against him, but, like the indictment, was obliged to state the fact or the act constituting the crime. The information stated that the defendant was charged with violating section 58 of the Vehicle and Traffic Law, in that he did operate an automobile at a rapid and dangerous rate of speed which did endanger the life of others. The danger arose because of the rapid and dangerous rate of speed. If this means anything it means going fast, exceeding the speed law. There is not a bit of evidence in the case that the defendant was going fast or at a rapid rate of speed, and the judge does not find him guilty of any such act.

Two automobiles met at intersecting crossings; the complainant was driving one, the Willys-Knight, and the defendant the other. The complainant testifies that as she approached the crossing she could not see the intersecting street, because of a hedge and a house, until she got at the intersection. She was then going at five or ten miles an hour, and increased her speed to twenty, when the defendant's car was only fifty feet from her, coming on her right, through the intersecting street. For the prosecution there is not one word of evidence as to the speed of the defendant's car. The whole case is based upon the fact that a collision occurred, the defendant's car striking the hind fender of the complainant's. The defendant testified that he was going about fifteen miles an hour, and that, as he was entering the cross street, the plaintiff's car shot rapidly in front of him. On these facts the defendant has been charged, as above stated, with driving at a rapid and dangerous rate of speed, endangering the lives of the public. The case is entirely barren of any evidence of excessive speed, or driving at a rapid and dangerous rate of speed, and the information should have been dismissed. We cannot try a defendant on a charge of committing an act constituting a crime and then prove him guilty of another act of which he has not been charged. This is a fundamental principle of criminal law.

Besides this, section 58, by its third subdivision, prohibiting ‘reckless driving,’ calls for evidence showing something more than mere negligence. In People v. Devoe, 246 N. Y. 636, 159 N. E. 682, this court said that, though merely driving in excess of the speed stated in the Highway Law, § 287, subd. 2, may not in and of itself constitute the crime of reckless driving under Highway Law, § 287-b, yet the evidence in that case, considering all the circumstances, presented a question of fact for the court. Mere speed in itself in excess of that allowed by the Highway Law is not alone sufficient. In Wood v. Pace, 220 App. Div. 386, 222 N. Y. S. 157, it was held that one who drove an automobile at between twenty and twenty-eight miles an hour and struck a person crossing the street, was not guilty of negligence merely because of the speed. As stated in State v. Andrews, 108 Conn. 209, 213, 142 A. 840, 841: ‘The offense of driving ‘recklessly’ in view of the conditions, as set forth in our own statute, sufficiently meets the requirements of definiteness and certainty. State v. Goetz, 83 Conn. 437, 76 A. 1000,30 L. R. A. (N. S.) 458. The word has a clear and commonly understood meaning, so that one of ordinary intelligence is not left in doubt as to its purport. Though the speed limit formerly imposed in this state has been removed, the term ‘recklessly’ still remains definite. Its test does not lie in speed alone, but in that and other circumstances which together show a reckless disregard of consequences.' To the same effect, see, People v. Angelo, 246 N. Y. 451, 159 N. E. 394, where this court said regarding the words ‘culpable negligence’ that the word ‘culpable’ was equivalent to criminal, reckless, gross, such negligence...