State v. Pasta

• Decision Date: 01 August 1927
• Docket Number: 4873
• Citation: 258 P. 1075,44 Idaho 671
• Parties: STATE, Respondent, v. JAMES PASTA, Appellant
• Court: Idaho Supreme Court

258 P. 1075

44 Idaho 671

STATE, Respondent, v. JAMES PASTA, Appellant

No. 4873

Supreme Court of Idaho

August 1, 1927

CRIMINAL LAW-STATUTES-LAWS OF ROAD-ADDITION OF PENALTY FOR VIOLATION EFFECT-HIGHWAYS-VIEW OF ROAD, OBSTRUCTION-EVIDENCE OF EXCESSIVE SPEED, EFFECT-NO ERROR IN REFUSAL OF REQUESTED INSTRUCTION-SENTENCE OF BOTH FINE AND IMPRISONMENT, HELD ERROR.

1. Addition by Laws 1923, chap. 39, to Laws 1921, chap. 249 which declared laws of the road, of provisions for penalties for violations of such latter act, held sufficiently germane to subject matter expressed in title of original act as to have been originally included therein and not prohibited by Const., art. 3, sec. 16, requiring that act shall contain but one subject and matters properly connected therewith and subject shall be expressed in title.

2. Addition by Laws 1923, chap. 39, to Laws 1921, chap. 249, of penalty for violations of provisions of such latter act, held not to so change, alter and amend every provision of the act that it would be necessary under Const., art 3, sec. 18, to set forth entire act as amended, in that the 1923 act is supplementary and is complete as to its purpose and does not alter or change a word of former act.

3. In prosecution under Laws 1921, chap. 249, sec. 1, subsec. 13 providing that no vehicle shall overtake and pass any other vehicle when view ahead is not clear for 100 yards, admitting evidence that defendant was traveling at excessive speed, for purpose of explaining circumstances of crime charged, held not to have resulted in prejudice, in view of court's instruction thereon.

4. Evidence in prosecution under Laws 1921, chap. 249, sec. 1, subsec. 13, providing that no vehicle shall overtake and pass any other vehicle when view ahead is not clear for 100 yards, held sufficient to sustain conviction.

5. Refusal of requested instruction, which was substantially covered by and included in instruction given by court, held not to constitute error.

6. Sentence of both fine and imprisonment for conviction of violation of Laws 1921, chap. 249, sec. 1, subsec. 13, providing that no vehicle shall overtake and pass any other when view ahead is not clear, held error, in that law provides violator shall be punished by fine or imprisonment.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Judgment of conviction of violation of section 13, chap. 249, 1921 Sess. Laws. Judgment of conviction affirmed. Sentence ordered modified.

Affirmed.

C. M. Jeffery, for Appellant.

Chapter 249, Session Laws 1921, repealed sec. 1614, C. S., and did not amend said section. (1921 Sess. Laws, p. 539, chap. 249, sec. 1, subds. 13, 16.)

Chapter 39, Session Laws 1923, added a new section to chapter 249, Session Laws 1921, making it a misdemeanor to violate any of the provisions of chap. 249, Session Laws 1921.

C. S., sec. 1619 provided for a penalty for any violation of sec. 1614, C. S. Session Laws 1923, chap. 39, did not repeal by specific reference sec. 1619, C. S.

A statute or act may be amended by amending a section or sections thereof, in which event the section or sections amended must be set forth and published at full length, or a statute or act may be amended by adding a new section, provided the subject matter be germane and relates to the subject matter embraced in the title of the act proposed to be amended; but a section of a statute or an act cannot be amended by the addition of a new section, but the section amended must be set forth at full length. (Const., art. 3, sec. 18; State v. Jones, 9 Idaho 693, 75 P. 819; Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Settlers Irr. Dist. v. Settlers Canal Co., 14 Idaho 504, 94 P. 829; Hailey v. State Historical Soc., 25 Idaho 165, 136 P. 212; Gilbert v. Moody, 3 Idaho 3, 25 P. 1092; State v. Beddo, 22 Utah 432, 63 P. 96; Copland v. Pirie, 26 Wash. 481, 90 Am. St. 769, 67 P. 227; State v. Wright, 14 Ore. 365, 12 P. 708; Town of Gaston v. Thompson, 89 Ore. 412, 174 P. 717; Brown v. City of Silverton, 97 Ore. 441, 190 P. 971; Haring v. State, 51 N.J.L. 386, 17 A. 1079; People v. Mahaney, 13 Mich. 481; Bush v. Indianapolis, 120 Ind. 476, 2 N.E. 422.)

There is a distinction between the amendment of an act or existing law and the adoption of another law. The amendment alters or modifies the existing law, whereas the adoption of another law does not alter or modify the existing law, or law adopted, but merely incorporates the existing law into the new act and re-enacts the new act together with the incorporated law. (25 R. C. L. 904, sec. 156, and p. 907, sec. 160.)

"It is not enough that the act embraces but a single subject and all parts are germane, but the title must express the subjects comprehensively enough to include all the provisions in the body of the act." (Sutherland on Stat. Construction, sec. 89.)

Speed at another point on the road not admissible. (Huddy on Automobiles, sec. 929; Armann v. Caswell, 30 N.D. 406, 152 N.W. 813; Grand v. Kasviner, 26 Cal.App. 530, 153 P. 243.)

"It is the duty of the prosecuting attorney to see that the defendant has a fair trial, and nothing but competent evidence is submitted to the jury, and above all things he should guard against anything that would prejudice the minds of the jury." (State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716.)

"Where a verdict is manifestly against the overwhelming weight of the evidence, so as to suggest that it was rendered through bias, prejudice or passion, and that injustice has been done thereby, the verdict must be set aside." (Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635.)

Frank L. Stephan, Attorney General, and John W. Cramer and Leon M. Fisk, Assistant Attorney General, for Respondent.

Chapter 249, Laws of 1921, is a complete code on the subject designated as "The Laws of the Road." (Chap. 249, Laws 1921.)

A complete code of law on one particular subject may be embodied in one statute. (Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 68 P. 295.)

The title of chap. 249, Laws of 1921, was broad enough to cover all sections or subdivisions included therein. (Pioneer Irr. Dist. v. Bradley, supra; State v. Pioneer Nurseries Co., 26 Idaho 332, 143 P. 405; In re Crane, 27 Idaho 671, 151 P. 1006, L. R. A. 1918A, 942; Jackson v. Gallet, 39 Idaho 382, 228 P. 1068.)

The title of chap. 249, Laws of 1921, was broad enough to include the subject matter contained in the new section added by chap. 39, Laws of 1923. (36 Cyc. 1032; In re Terrett, 34 Mont. 325, 86 P. 266; Sutherland's Stat. Const., 2d ed., sec. 137.)

The courts will construe the chapter in accordance with the intention of the legislature if possible to do so. (Wood v. Independent School Dist., 21 Idaho 734, 124 P. 780; Empire Copper Co. v. Henderson, 15 Idaho 635, 99 P. 127; Weaver v. Rambow, 37 Idaho 645, 217 P. 610; State v. Bowman, 40 Idaho 470, 235 P. 577.)

Penal statutes should not be so construed as to defeat the obvious intention of the legislature. (Sutherland's Stat. Const., sec. 328.)

It rests in the discretion of the trial judge as to whether or not the evidence of another offense has such a connection as to warrant its introduction in the proving of the offense charged. (State v. Lancaster, 10 Idaho 410, 78 P. 1081; 23 Am. & Eng. Ency. of Law, 2d ed., p. 248.)

Evidence of excessive speed was admissible where the defendant was protected by the court's instruction. (State v. Lancaster, supra; State v. Bubis, 39 Idaho 376, 227 P. 384; Jaynes v. People, 44 Colo. 535, 16 Ann. Cas. 787, 99 P. 325; People v. Glass, 158 Cal. 650, 112 P. 281; 16 C. J. 856; People v. Ebanks, 117 Cal. 652, 49 P. 1049, 40 L. R. A. 269.)

Erroneous statements may be explained to the jury. (State v. Rooke, 10 Idaho 388, 79 P. 82.)

Appellant's instruction number 2 was properly refused for the reason that it is argumentative. (State v. Jones, 28 Idaho 428, 154 P. 378; State v. Cosler, 39 Idaho 519, 228 P. 277; People v. Hatch, 163 Cal. 368, 125 P. 907.)

Where the penalty is excessive of the requirements of the law this court may modify the same to comply with such requirements. (C. S., sec. 9066; State v. Ramirez, 34 Idaho 623, 29 A. L. R. 297, 203 P. 279.)

WM. E. LEE, C. J. Budge, givens and T. Bailey Lee, JJ., concur. TAYLOR, J., Dissenting.

OPINION

WM. E. LEE, C. J.

While traveling on the highway between Pocatello and Blackfoot, appellant, in attempting to pass a car going in the same direction, collided with the car he was attempting to pass, as well as with another car approaching from the opposite direction. Considerable injury resulted to the three cars and to their occupants. Appellant was convicted of a violation of that portion of sec. 13, chap. 249, 1921 Session Laws, which reads--

". . . . and no vehicle shall overtake and pass any other vehicle when the view ahead is not clear for at least one hundred yards."

He was sentenced to pay a fine and to serve a term of imprisonment. The appeal is from the judgment.

C. S., sec. 1614, a part of chap. 69, title 11, Compiled Statutes, contained twenty-five paragraphs relating to rules to be observed by the drivers of vehicles on roads and highways, and was entitled "Laws of the road." C. S., sec. 1619, made the violations of any of the provisions of chap. 69 a misdemeanor. The legislature, in 1921, repealed C. S., sec. 1614, and enacted chap. 249, "Declaring laws of the road." No penalty was provided in the 1921 act. In 1923, the legislature passed an "Act adding a new section to Chapter 249, 1921 Session Laws . . . . relating to the Laws of the road . . . . providing penalties for the violations of the provisions of said Chapter 249."

It is the position of appellant, in the first place, that the penalty provision in...