Sullivan v. State

• Decision Date: 04 June 1928
• Docket Number: 27022
• Court: Mississippi Supreme Court
• Parties: SULLIVAN v. STATE. [*]

117 So. 374

150 Miss. 542

SULLIVAN v. STATE. ^[*]

No. 27022

Supreme Court of Mississippi

June 4, 1928

Division B

CRIMINAL LAW. Indictment and information. Provision that all objections to indictment for defect on face must be taken by demurrer applies to prosecution based on affidavit; affidavit on which criminal prosecution is based, not demurred to for defect appearing on the face, will be treated as sufficient defect on face of affidavit, on which person is prosecuted in justice court, may be amended in circuit court on appeal affidavit on which prosecution for failing to turn motor truck to right of center of highway on meeting another was based, not demurred to, held sufficient (Hemingway's Code 1927, sections 1243, 1332, 6686).

Under section 1243 of Hemingway's Code of 1927 (section 1426 of the Code of 1906), all objections to an indictment for a defect appearing on the face thereof must be taken by demurrer. This provision is applicable to a prosecution based upon an affidavit also, and an affidavit not demurred to will be treated as sufficient, as it may be amended in the circuit court on appeal under section 1332 of Hemingway's Code of 1927 (section 1511 of the Code of 1906).

HON. C P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Romie Sullivan was convicted of failing to turn a motor truck to the right of the center of a highway on meeting another, and he appeals. Affirmed.

Judgment affirmed.

W. A. Blair, for appellant.

James W. Cassedy, Jr., Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, P.J.

Romie Sullivan, the appellant, was prosecuted in the justice of the peace court for violation of section 6686, Hemingway's Code of 1927 (Laws 1916, chapter 116, section 8), and was convicted and fined one hundred dollars.

The main assignment of error is that the affidavit charges no offense. The affidavit, barring the formal part, charges that:

"Romie Sullivan did willfully and unlawfully operate a certain motor vehicle, to-wit, a Chevrolet truck, on the Eureka and Nettleton public road, a public highway in Lee county, Miss., and did pass Rubel Nicholson, who was operating a Chevrolet truck on the said highway, and the said Romie Sullivan and the said Rubel Nicholson did meet with their said trucks on said public highway, near the home of S. B. Hendrix, and on meeting the said Romie Sullivan did fail and neglect to turn his said Chevrolet truck to the right of the center of said highway, when Rubel Nicholson did turn his said Chevrolet truck to the right of said highway, and the said Romie Sullivan did run his said Chevrolet truck upon and against the Chevrolet truck bring operated by Rubel Nicholson, against the peace and dignity of the state of Mississippi."

There was no demurrer to the affidavit in the circuit court, and it was agreed by the court that the transaction took place in the fifth supervisor's district in Leo county, Miss., on the Nettleton and Eureka public road, and that it was a public road, and that the defendant was operating the Chevrolet truck, and that the witness was also operating a Chevrolet truck, and that it occurred about the 17th day of September, 1927; and the only question to go to the jury on is whether this man violated the law in any way in driving that truck.

The pertinent part of section 6686, Hemingway's Code of 1927 (chapter 116, section 8, Laws of 1916), reads as follows:

"Whenever a person operating a motor vehicle, or causing the same to be operated, shall meet on a public highway any other person riding or driving a horse or horses, or other draft animals, or any other vehicles, the person so operating such motor vehicle, or causing the same to be operated, shall reasonably turn or cause the same to be turned to the right of the center of such highway, street, avenue or alley, so as to pass without interference."

Violation of this section is...