Summary
In Meyer, supra, it was held that a statute similar to Missouri's § 302.181(3) prescribed a rule of evidence only. Again in State v. Farren, 140 Ohio St. 473, 45 N.E.2d 413 (1942), a similar statute was held to provide a result or penalty of its own and hence did not come under the general provisions of a misdemeanor statute.
Summary of this case from State v. CampbellOpinion
January 21, 1921.
Albert W. Seaman, for the appellant.
Ralph E. Hemstreet, Assistant District Attorney [ Harry E. Lewis, District Attorney, with him on the brief], for the respondent.
On December 15, 1920, the defendant drove a motor car in a street of the borough of Brooklyn and finally into a garage. There a police officer who had followed the defendant demanded exhibition of his operator's license from the State of New York. But the defendant showed only such a license from the State of Massachusetts. Thereupon the officer served a summons upon the defendant.
At trial by a Court of Special Sessions the defendant testified that the motor car at the time of the officer's demand bore a license from the State of Massachusetts, that he also had on his person at that time his operator's license from the State of New York and the operator's button prescribed by the New York State laws upon his hat. He admitted that he did not then show his operator's license from the State of New York. The record permits the inference that the defendant did not show his New York license to the officer because the motor car bore a Massachusetts license, and he did not fully understand the officer's demand. The defendant read in evidence his New York license, which had been issued to him on the first of the year 1920, and testified that he had had such a license or a similar license for the ten years immediately preceding. There was no evidence offered in contradiction, but the court convicted the defendant. The violation of section 289 of the Highway Law is a misdemeanor. (Highway Law, § 290, subd. 1, added by Laws of 1910, chap. 374, as amd. by Laws of 1917, chap. 769, and Laws of 1918, chap. 549.)
The conviction concededly rests upon that part of section 289 of the Highway Law (added by Laws of 1910, chap. 374, as amd. by Laws of 1917, chap. 769, and Laws of 1919, chap. 472) which prescribes: "§ 289. License of operators and chauffeurs; renewals. 1. * * * Failure by an operator or chauffeur to exhibit his license to any magistrate, motor vehicle inspector, police officer, constable or other competent authority, shall be presumptive evidence that said person is not duly licensed under this article." The conviction cannot stand, as the learned district attorney with characteristic fairness concedes. The part of the statute quoted prescribes a rule of evidence only, and the presumption which it affords was overcome by this uncontradicted evidence.
The judgment is reversed and the defendant is discharged.
RICH, PUTNAM, BLACKMAR and KELLY, JJ., concur.
Judgment of conviction of the Court of Special Sessions reversed, and defendant discharged.