Summary
In Ferguson v. State, 198 Miss. 825, 23 So.2d 687, 688, the Court held that the words "`operate a motor vehicle'" include the driving of such motor vehicle.
Summary of this case from State v. MichaelOpinion
No. 35890.
November 12, 1945.
1. AUTOMOBILES.
Evidence authorized conviction of driving a motor vehicle on a public road while under the influence of intoxicating liquor (Code 1942, sec. 8174).
2. INDICTMENT AND INFORMATION.
An indictment charging defendant with "operating" a motor vehicle while under the influence of an intoxicating liquor was not deficient in light of statute prohibiting the "driving" of a vehicle while under the influence of an intoxicating liquor, since the words "operate a motor vehicle" include the driving of such vehicle (Code 1942, sec. 8174).
3. INDICTMENT AND INFORMATION.
In charging a statutory offense in an indictment it is not necessary to use the exact words of the statute, but only their equivalent.
APPEAL from the circuit court of Winston county, HON. JNO. F. ALLEN, Judge.
Neal Prisock, of Louisville, for appellant.
The appellant is charged with "operating" a vehicle while under the influence of intoxicating liquors. The statute under which the appellant was indicted and tried, Section 8174, Code of 1942, makes it unlawful and punishable for any person to "drive" any motor vehicle within this state while under the influence of intoxicating liquors. Criminal statutes are strictly construed in favor of the accused, and to "operate" a motor vehicle does not mean the same thing as to "drive" a motor vehicle. An individual may operate a bus line from one point to another and never drive a single motor vehicle and might be unable to drive a motor vehicle because of some physical handicap or for the simple reason that he does not know how to drive.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The indictment in this case, omitting the formal parts, is as follows: "That Jewel Ferguson . . . on the 12th day of December, A.D., 1944, in the county aforesaid being then and there the bonded carrier of School Transportation Route #13 from Ellison Ridge School in Winston County, Mississippi, wilfully and unlawfully did operate a motor vehicle, to-wit: said school truck on the public road from Ellison Ridge school to the home of Dewey Eaves at a time when he, the said Jewel Ferguson, was under the influence of intoxicating liquor, contrary to the form of statute in such case made and provided, and against the peace and dignity of the State of Mississippi." To this indictment a demurrer was filed, which is as follows: "Comes now defendant Jewell Furgerson, and demurs to the indictment exhibited against him for the following grounds, to-wit: 1. The Indictment Charges defendant with no crime known to the law." This demurrer was overruled.
The only authority cited by appellant is Section 8174, Code of 1942, which section uses the word "drive" and he contends that there is a distinction between the words "drive" and "operate." However, in this connection, or insofar as the offense is concerned, I submit that the words are synonymous, and that the Code of 1930, Section 5579, a similar statute, uses the word "operate." These words are interchangeable and are so used throughout the chapter on motor vehicles in the Code of 1942.
Furthermore, it has been held that a demurrer simply charging that the affidavit or indictment charges no crime known to the law does not state a good ground as it is too general; that a demurrer to an indictment or affidavit charging an offense must be specific and not general in its terms; and that specific objections to an indictment must, in all cases, be pointed out.
State v. Butterfield Lumber Co., 103 Miss. 286, 60 So. 322.
Our court has held in a number of cases that, in an indictment for statutory crime, equivalent words with substantially the same meaning as those of the statute may be substituted.
Ousley v. State, 154 Miss. 451, 122 So. 731.
The indictment in this case was sufficient to advise the appellant of the crime against him and was sufficient.
State v. Needham, 182 Miss. 663, 180 So. 786.
This is an appeal from a conviction for driving a motor vehicle on a public road while under the influence of an intoxicating liquor. The appellant's complaints are (1) that his demurrer to the indictment should have been sustained; (2) his request for a directed verdict of not guilty should have been granted; and (3) that the evidence was insufficient to support the verdict. The two latter of these complaints are so wholly without substance as not to require a specific answer thereto. The indictment charged that the appellant "did operate a motor vehicle," etc.; when the statute under which the indictment was found prohibits (a) "any person who is under the influence of intoxicating liquor . . . to drive any vehicle," etc., Code 1942, sec. 8174; and the appellant's complaint, by his demurrer, is that the word "drive," instead of "operate," should have been here used.
One who drives a motor vehicle is, of course, operating it, though he may operate a motor vehicle without driving it. If authority therefor be desired, see 5 Am. Jur., Automobiles, 771, and extensive annotations to the cases there cited. The words "operate a motor vehicle," therefore, includes driving it. In charging a statutory offense in an indictment it is not necessary to use the exact words of the statute, but only their equivalent. See numerous cases cited in Vol. 8 West's Miss. Dig., Indictment and Information, Key No. 110, p. 352, "or words which are of more extensive signification than, or inclusive of, the statutory terms." 42 C.J.S., Indictment and Information, sec. 139, and cases there cited; and in note 2 to 31 C.J. 706.
Affirmed.