Warren v. Cleveland

LEVINE, Jf.

Epitomized Opinion

Warren was arrested, tried and convicted in the Cleveland Municipal Court for speeding. The affidavit for his arrest charged that he operated his automobile on Superior avenue between 51st and 43d streets at a .rate of speed greater than was reasonable or proper having regard for the width, traffic and use of the street, to-wit, 34 miles per hour. A policeman testified for the City that the accused was going 34 miles per hour. The accused and a passenger testified that he was going-only 25 miles per hour. No evidence was introduced as to the width of the' street, condition of traffic, or the general and usual rules of the road. Upon conviction, defendant prosecuted error claiming that inasmuch as no evidence of the width of the street, or condition of the traffic was introduced, defendant could not be convicted under City Ordinance Sec. -2271, which was modeled after 12603 GC. The accused also contended that the judgment wab contrary to the evidence. In reversing- the judgment the court held:

1. Where an ordinance or law provides that no person shall operate a motor vehicle at a rate of speed greater than is reasonable or proper having regard for the width, traffic and the usual rules of-the street or highway, it is incumbent' upon the state to prove what was the width, traffic, use and usual rules of the street or highway at the time of the alleged violation before a conviction- is proper.

2. A conviction upon the testimony of one witness is contrary to the evidence and cannot be sustained when the defendant and one witness, deny all the material facts constituting the charge, which testimony is in no way impeached. Sinclair v. State, 1611, Quyahoga Court of Appeals cited.