State v. Mills
| Decision Date | 06 April 1921 |
| Docket Number | 50. |
| Citation | 106 S.E. 677,181 N.C. 530 |
| Parties | STATE v. MILLS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Nash County; Cranmer, Judge.
G. V Mills was convicted in the recorder's court of driving an automobile in a manner in violation of law and committing an assault and battery while doing so, and he appealed to the superior court, and from a conviction therein he appeals. No error.
Defendant was charged before the recorder's court of Nash county with "unlawfully, willfully, and feloniously driving an automobile recklessly, carelessly, and faster than allowed by law, and committing an assault and battery while so doing upon J. R. Wheless and others, with intent to kill, injure and maim, and damage said J. R. Wheless, contrary to the form of the statute," etc. He was tried upon the charge before the recorder's court, and convicted and sentenced to six months' imprisonment, and assigned to work on the public roads, and he appealed. The law alleged to have been violated is section 2618 of the Consolidated Statutes. The statute creates several different offenses as to driving motor vehicles on the public highways of the state, that is driving recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger the property or the life or limb of any person. The proviso is that operating a motor vehicle at a rate of speed exceeding 25 miles per hour on any public highway outside the limits of any incorporated city or town, or at a rate exceeding 18 miles per hour in the residential portion of any city, or at a rate exceeding 10 miles per hour in the business section, shall be a violation of the statute.
W. M. Person, of Louisburg, for appellant.
James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
WALKER J. (after stating the facts as above).
The proviso was intended to define three acts which should per se constitute reckless or careless driving, and the commission of each of these acts is a separate and distinct crime. There may be other acts of reckless or careless driving within the meaning of all that goes before the proviso, as it was not the purpose of the Legislature to restrict reckless or careless driving to those acts enumerated in the first proviso of section 2618. A person may drive carelessly, or even recklessly, without exceeding the prescribed speed limits, and this case furnishes a clear illustration of it.
Now as to the power of amendment. It will be observed that in the original affidavit upon which the warrant was issued by the recorder, defendant was charged with reckless and careless driving, and with driving faster than is allowed by law, and also with the commission of an assault. The defendant appealed from the sentence of six months in prison, and in the superior court the presiding judge was requested to allow an amendment of the affidavit, and of the warrant which refers to it, so that the charge might be made with greater certainty and particularity, and the defendant was thereby informed of the special accusation made against him. We do not see why he should complain of this, as it favored him, because it enabled him to make better preparation for his defense. But whether so or not, the statute gives the judge ample power to permit such amendments to be made. Its terms are very broad and inclusive, as will appear on its face. This is the law, it being in Consolidated Statutes of 1919, § 1500, rule 12 (Revisal of 1905, § 1467, rule 11), and reads as follows:
"No process or other proceeding begun before a justice of the peace, whether in a civil or a criminal action, shall be quashed or set aside for the want of form, if the essential matters are set forth therein; and the court in which any such action shall be pending shall have power to amend any warrant, process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be deemed just, at any time either before or after judgment."
In the note to section 1500 (rule 12) of the Consolidated Statutes will be found the cases in which the exercise of the power in a very liberal manner has been upheld. It was contended that under this section the court has no power to strike out the offense charged in the lower court, and insert an entirely new and different one. State v. Taylor, 118 N.C. 1262, 24 S.E. 526; State v. Vaughan, 91 N.C. 532; State v. Crook, 91 N.C. 536. The reason for the change in the statute extending the power of amendment so as to embrace both civil and criminal cases, matters of substance as well as matters of form, and the power to amend before or after judgment is perfectly obvious. It was because a justice of the peace was supposed to lack technical learning and skill in framing process and pleadings, whereas the lawyer who practiced in the superior courts, and the solicitor, were supposed to have both, and also the judge, and no harm could be done to the defendant, or to the opposite party, by making the process or pleading conform, in some degree, to the rules of law. It produced, at least, greater certainty in legal procedure. No party could be prejudiced by it unless there was a departure from the original charge in the warrant. A clear analysis of this section (which was section 908 of the Code) is made by Justice Ashe in State v. Vaughan, supra, showing that the exercise of the power is discretionary, and that the power itself, by gradual amendment of the statute, is very broad, and finally was extended to matters of substance, whereas formerly it related only to matters of form and was confined to civil actions. Rev. Code, c. 62, § 22, chapter 3, and the Code, § 908.
Applying these well-settled principles to this case, we find that the original warrant, while somewhat informal in its allegations embraced, in a general way, all that is charged in the amendment allowed by the judge, in the form of a bill of indictment, each count specifying a distinct and different offense, but all embracing an assault, reckless driving, and driving at an...
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...Burnett, 142 N.C. 577, 55 S.E. 72; State v. Howard, 129 N.C. 584, 40 S.E. 71; State v. Harris, 106 N.C. 682, 11 S.E. 377; State v. Mills, 181 N.C. 530, 106 S.E. 677. also, State v. Alridge, 206 N.C. 850, 175 S.E. 191. Furthermore, bills and warrants are no longer subject to quashal "by reas......
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