White v. City of Philadelphia

Appellant was charged before the Mayor and Police Justice of the City of Philadelphia with violating a speed ordinance of the city. He was tried and convicted, and appealed to the circuit court. There was another trial in that court, resulting in his conviction and a fine of $100 and costs, from which judgment he appeals to this court. The questions of sufficient seriousness to call for discussion by the court are whether the following language of Section 8176, Vol. 6, Code of 1942, became a valid ordinance of the city by virtue of Section 8275, Vol. 6, Code of 1942, and an ordinance passed by the city under Section 3660, Vol. 3, Code of 1942; and, if so, whether the affidavit sufficiently charged the offense and, if it did, whether the instruction given for the city was erroneous, and whether the evidence was sufficient to convict. That part of Section 8176 involved is in this language:

"(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.

"(b) Where no special hazard exists the following speeds shall be lawful but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:

"1. Twenty miles per hour in any business district;

"2. Twenty-five miles per hour in any resident district;

"3. Fifty-five miles per hour under other conditions. Provided however, the speed limit of trucks shall be forty miles per hour."

Section 8275 is a part of the chapter on motor vehicles as is Section 8176. It provides in part that it shall be a misdemeanor for any person to violate any of the provisions of the act unless declared to be a felony under some other statute. Section 3660 gives municipalities the authority to pass a general ordinance declaring that all offenses under the penal laws of the state which are misdemeanors shall also be offenses against the city, town or village in whose corporate limits the offense may have been committed, the punishment to be imposed by the municipality as provided in the laws of the state with regard to such offenses against the state.

We are of opinion that it is very clear that the ordinance was authorized by the statutes referred to and was therefore valid. The statute makes the prohibited speed prima facie evidence of guilt, it therefore does not exclude any valid defense which might exist.

It will be observed that Section 8176 provides that a violation of the speed limits therein prescribed shall be prima facie evidence that such speed is unlawful. The evidence in this case showed without conflict that appellant was driving more than fifty-five miles an hour, in fact, from seventy to seventy-five miles. He did not testify nor did he offer any evidence to show any justification for driving over fifty-five miles an hour. Was his guilt established by the evidence beyond a reasonable doubt? In other words, was it necessary for the municipality to offer more than a prima facie case? We think not. Undenied by any evidence, the prima facie case became proof beyond a reasonable doubt. Although the burden of proof in a criminal case never shifts from the state, yet when a distinct substantive matter is relied on as a defense, the burden of proof rests upon the defendant. Bennett v. State, 100 Miss. 684, 56 So. 777. In Hosey v. State, 136 Miss. 5, 100 So. 577, the defendant was indicted for the unlawful sale of intoxicating liquor. He claimed immunity under Section 1792, Code of 1906, by reason of testimony forced to be given by him before the grand jury. The court held that the burden rested on the defendant to show that his testimony before the grand jury was not voluntary. The burden of proof in a criminal case is on the defendant with regard to any independent exculpatory fact. Page v. State, 160 Miss. 300, 133 So. 216. In Foster v. State, 52 Miss. 695, the decisions of the courts both ways are discussed ably and fully, and also in 32 Am. Jur. (Larceny) Sec. 140. The court held in the Foster case, quoting from the first paragraph of the syllabi (which fairly states the holding), that "the possession raises a presumption which calls upon the accused for explanation, and casts upon him the burden of accounting for the possession."

We are of opinion that the evidence was sufficient to convict. The Bennett case, supra, construed Section 1051, Code of 1906, which provides that every person having a husband or wife living, who shall marry again, except in certain cases later mentioned, shall be guilty of bigamy. The court held that the burden of proof was on the accused to prove that his second marriage was within the exceptions (Section 1052, Code 1906) and the state was not required to introduce evidence to show that the first marriage had been dissolved in order to make out a prima facie case against the defendant. And the court further held (quoting the fifth paragraph of the syllabi), "While it is the universal rule of evidence that every person is presumed innocent until proven guilty, this presumption does not impose upon the state the burden of negativing distinct defenses, not necessarily negatived in proving the offense."

We hold that when a prima facie case is made out by the state and any defense thereto is shown by the evidence to be naturally within the personal knowledge of the defendant, then if he fails to meet the prima facie case his guilt is proven beyond a reasonable doubt. "The presumption of innocence fulfills its purpose when it requires the state to first go forward with its evidence and establish a prima facie case. Thenceforth, it is solely a question of proof and the quantum thereof." 20 Am. Jur., Evidence, Sec. 223, and cases in the notes.

The affidavit is in this language: "Before me, W.M. Prince, Mayor and Police Justice of the City of Philadelphia, Mississippi, personally appeared Hugh Barrett, who makes oath that Sam White, on or about the 25th day of September, 1943, in corporate limits of said city did wilfully and unlawfully operate and drive an automobile on and over Byrd Avenue, a public street or highway, in said city, at a high and illegal rate of speed, to-wit: At a rate of more than 55 miles per hour, contrary to the Laws and Ordinances of said City in such cases made and provided."

We are of the opinion that the affidavit was sufficient to charge the offense. The charge in substance was that appellant was running over 55 miles an hour and that the speed was unlawful.

The instruction given for the city follows:

"The Court instructs the jury for the City that if you believe from the evidence beyond reasonable doubt that the defendant Sam White, about the time testified about, unlawfully did drive an automobile on and over Byrd avenue in the City of Philadelphia, Neshoba County, Mississippi, at the rate of more than 55 miles an hour, then you should find the defendant guilty as charged, and the form of your verdict should be: We, the jury, find the defendant guilty as charged."

It will be seen that it told the jury that if the evidence showed beyond reasonable doubt appellant was running over 55 miles an hour and that such speed was unlawful the verdict of guilty should follow. Crowell v. State, 195 Miss. 427,15 So.2d 508, is not in point. In that case the defendant was charged with the crime of knowingly receiving stolen goods. To meet the prima facie case he testified himself and put on other witnesses. The court charged the jury for the state that it devolved upon the accused to give a satisfactory explanation of his possession of the recently stolen property in order to be relieved of any inference of guilt that might be drawn against him. In that case the court held that where the prima facie case is attempted to be overcome by evidence for the defense, including that of the defendant himself, such an instruction was not proper in a case of that kind. In the present case there was no attempt by the defendant or any witness for him to overcome the prima facie case.

We are of opinion that there was no error in giving the instruction.

Affirmed.