State v. Wilson

ALLEN, J.

Defendant was convicted of violating section 8 of the Act of 1911, entitled “Motor Vehicles” (laws 1911, p. 326). His punishment was assessed at a fine of twenty-five dollars, and he appeals.

The information charges that on August 7, 1911, the defendant was operating and driving a motor vehicle, to-wit an automobile, along a public highway in Dunklin county, “going in an opposite direction to one A. A. Davidson who was then and there driving a team of mules along and on said public highway;” and that the defendant unlawfully neglected, failed and refused “to slow down and stop said motor vehicle, when lawfully requested and signalled so to do, by the said A. A. Davidson and Henry Davidson.”

Upon the occasion in question A. A. Davidson was driving a team of mules attached to a wagon, and proceeding in an easterly direction along the highway mentioned in the -information. There were several occupants of this wagon. In front of it was another wagon, and behind it was a buggy occupied by two men, one of them being A. A. Davidson’s father, Henry Davidson. The defendant’s automobile, driven by defendant, turned into this road' a short distance east, of these vehicles, and proceeded toward and passed them.

On behalf of the State the evidence is to the effect that, as the automobile approached, A. A. Davidson stood up in the wagon holding the reins, anticipating that the mules would become frightened; that he called to defendant to stop, and that one Boyd, sitting in the rear seat of this wagon, raised his hand as a signal to defendant to stop; and that' Henry Davidson, in the buggy in the rear but who was not driving the same, signalled to defendant in like manner.

Defendant testified that he saw no signals from anyone; that he observed the team of mules as he approached them, and saw that the driver thereof was standing, but that the mules did not appear to be frightened until just as he passed them. He testified that he heard no one call to him until just as he passed the mules. Another occupant of the automobile testified that he saw no signals; and his testimony in other respects is substantially the same as that of defendant. The evidence is that the speed of the automobile was about eight miles per hour. It appears that the mules did not run away, though it is said that they attempted to run but were at once stopped, and no damage was done.

Under the facts disclosed in evidence it is clear that the conviction cannot be sustained. The prosecution is based upon the above-mentioned statute, which went into effect on August 1, 1911, one week prior to the alleged commission of the offense charged; it proceeds upon the theory that the defendant unlawfully neglected, failed and refused to stop his automobile when signalled to do so. The portion of the statute with which we are here concerned provides that one operating or driving a motor vehicle shall, “on signal by raising the hand, from a person riding, leading or driving a horse or horses or other animals, bring such motor vehicle immediately to a stop.” (Italics onrs.) In the case before ns the State’s evidence is, and it is conceded, that the driver of the mnles did not in fact give any signal at all. It is contended, however, that the statute should be construed so as to require the driver of a motor vehicle to give heed to a signal of the character mentioned in the statute when given by any occupant of a vehicle drawn by horses or other like animals. But this view cannot be sustained. The statute is both penal and criminal. It must be strictly construed in favor of the defendant and against the State both as to the charge and the proof. [State v. McMahon, 234 Mo. 611, 137 S. W. 872; State v. Howard, 137 Mo. 289, 38 S. W. 908; State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842.] While this does not mean that no regard is to be had to the intent and spirit thereof, when construing its literal terms, it does mean that the statute cannot be extended beyond the plain meaning and purport of the language employed.

The charge in the information that defendant failed to stop his automobile in compliance with a signal given by Henry Davidson, who was in another vehicle, is mere surplusage, and it is not contended that the conviction may be sustained by proof of the giving of such signal. The contention is that the evidence adduced fo the effect- that a signal was given by Boyd, who was on the rear seat in A. A. Davidson’s wagon, is sufficient to sustain the conviction. But in the face of the plain language of the statute, which can in nowise be extended by implication, this contention cannot be upheld. It is reasonable to suppose that the Legislature intended, so far as concerns this phase of the statute, that the driver of a motor vehicle should have regard to the person driving or in charge of the animal or animals in question, and that he be required to act upon signal from such person only. It may readily be assumed that the statute was designedly drawn in this respect, with the idea that the driver, or person in charge of the animal or team, is in a position to know whether or not a signal to stop is necessary, and that he will timely give one if there be any need therefor.

It is urged that, inasmuch as the evidence shows that the driver upon this occasion was using both hands in holding the reins to control the team and was thus unable to signal, a signal given by any other occupant of the vehicle should be held to be sufficient. But we cannot thus extend the scope and operation of this statute. One observing a team and its driver may not see a signal given by some other person, and defendant testified that he did not see this signal: but it is sufficient to say that the statute does not fasten criminal liability upon the driver of a motor vehicle for failure to observe and obey such a signal. And this is the only question here involved. [See Messer v. Bruening, 25 N. D. 599; 48 L. R. A. (N. S.) 945.]

If the construction of this provision of the statute renders it a “dead letter,” as respondent’s counsel contends, which we do not concede, then the remedy must be sought at the hands of the lawmakers. The language of the act is clear and unambiguous, and not of doubtful import; and we cannot, under the guise of judicial construction, read into it something which the Legislature did not see fit to place therein.

The judgment should be reversed and the defendant discharged. It is so ordered.

Reynolds, P. Jand Nortoni, J., concur.