People v. Banat

BISHOP, J.

An attempt was made, in a complaint sworn to before the trial judge, to charge the defendant with speeding. At the suggestion of the defendant but on the court’s

*Supp. 767

own motion, the case was dismissed with prejudice, before trial, the grounds given for the dismissal being that the provisions of section 510 and of paragraph 2 of section 511 of the Vehicle Code are unconstitutional, and that the complaint states conclusions of law rather than ultimate facts. From the order of dismissal the People have appealed. We have concluded that so far as they are brought into question at this stage of the prosecution, the Vehicle Code provisions are valid; that the complaint is faulty, but not for the reasons given; and that the order dismissing the case was proper, except that it should not have been with prejudice, but should have been for the purpose of amending the complaint.

The complaint charged that the defendant had operated a vehicle (an automobile) 18 December 1939, on Firestone Boulevard near Bandera Street, in San Antonio township, “at a speed in excess of 25 miles per hour, to wit: 43 miles per hour, and in a careless and reckless manner, without due regard to the traffic, surface and width of the said highway and so as to endanger the life, limb and property of other persons at said time and place.” Further words indicate that the offense thus attempted to be charged occurred in a so-called 25-mile zone. This complaint does not state a public offense known to any existing state law or local ordinance of which we are aware. With this conclusion of the trial court, expressed in the opinion filed in support of its order, we are in agreement: There is no law which makes the speed of 43 miles per hour, even in a 25-mile zone, of itself unlawful. See

Knox

v.

Pryor,

(1935) 10 Cal. App. (2d) 76, 78 [51 Pac. (2d) 106], and case cited. Speed may be unlawful', but to be so it must offend the basic speed law which is expressed in section 510, Vehicle Code: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”

In the trial court’s opinion and in the arguments before us it has been assumed that the complaint was based on the section just quoted. A comparison of the section and of the complaint, however, proves the assumption to be ill founded. After stating the speed charged against the de