Taylor v. State , 299 Ark. 392 ( 1989 )

David Newbern, Justice.

Mac Taylor, the appellant, was convicted of driving a truck in violation of the statute governing vehicle weight. He contends he was prosecuted for violation of having an overweight set of tandem axles but that the state failed to prove his axles were in tandem because there was no proof of the distance between the axles. The trial court denied Taylor’s directed verdict motion after noting at least one axle was overweight whether it was considered part of a tandem or not. We affirm because the trial court was right in refusing to direct a verdict in Taylor’s favor.

The information pursuant to which Taylor was prosecuted charged him with the crime of “Violation of Single & Tand[e]m Axle Loa[d] Limit - Unclassified Misdemeanor 27-35-203(b) (75-817(b)). . . .” The number 27-35-203(b) refers to that section of the Arkansas Code of 1987 Annotated (Supp. 1987). The number appearing in parentheses, 75-817(b), refers to the predecessor statute in Arkansas Statutes Annotated.

Section 27-35-203(b)(l) provides:

The total gross load imposed on the highway by two (2) consecutive axles in tandem articulated from a common attachment or individually attached to the vehicle, and spaced not less than forty inches (40”) nor more than ninety-six inches (96”) apart, shall not exceed thirty-four thousand pounds (34,000 lbs.).

Section 27-3 5-203 (b)(2) provides that “[n]o one (1) axle of any such group of two (2) consecutive axles shall exceed the load permitted for a single axle.”

Two police officers who were at the scene of the alleged violation testified that trailer axles were tandem axles and they were overweight. At the conclusion of the evidence, counsel for Mr. Taylor moved for a directed verdict on the ground that there had been no proof that the axles were within the distances stated in § 27-35-203(b)(1). The judge noted that subsection (b)(2) required that “no one axle of any such group of two consecutive axles shall exceed the load permitted for a single axle.”

The evidence showed there were two tandem or consecutive axles on Taylor’s rig which, together, weighed 41,500 pounds. There is no way to divide that figure without concluding that one axle was in excess of 20,000 pounds, which is the maximum for a single axle as provided in Ark. Code Ann. § 27-35-203(a). It was not necessary to charge the defendant under § 27-35-203(a) to find him guilty of having a single axle over 20,000 pounds, however, as that is the offense chargeable, and in this case charged, under subsection (b) which includes subsection (b)(2).

Affirmed.

Hickman, J., concurring. Purtle and Glaze, JJ., dissenting.