* Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 68, n. 34; Motor Vehicles, 28 Cyc, p. 34, n. 84; p. 49, n. 56; Validity and construction of Acts regulating speed of automobiles, see note in L.R.A. 1918D, 145; 26 A.L.R. 902; 2 R.C.L. 1177; 1 R.C.L. Supp. 716; 5 R.C.L. Supp. 130. The appellant, J.L. Snipes, was convicted in a justice of peace court on a charge of violating the statute regulating the speed of motor vehicles on public highways, the gist of the charge being that he was driving at a greater rate of speed than thirty miles per hour. On appeal to the circuit court, a demurrer to the affidavit was interposed and sustained, and the state, on motion of the district attorney, was permitted to amend the affidavit by more particularly describing the highway and the place of the commission of the offense. This amendment was made by writing the same into the face of the affidavit, but no order allowing the amendment was entered on the minutes of the court until after the conclusion of the trial. The appellant was convicted and sentenced to pay a fine of fifty dollars and to serve thirty days in jail, and from this conviction and sentence this appeal was prosecuted.
The first ground for reversal urged by counsel for appellant is that the affidavit, which merely charged that the defendant drove his automobile on the public highway at a greater rate of speed than thirty miles per hour, charges no offense, or, in other words, that it is not a violation of the statute regulating the speed of motor vehicles to drive on a public highway at a greater rate of speed than thirty miles per hour, unless so to do is unreasonable and improper, having due regard to the traffic and use of the highway, or is dangerous to the life or limb of persons or the safety of property. We do not so construe the language of this statute. The provisions regulating the speed of motor vehicles is found *Page 271 in chapter 116, Laws of 1916 (section 5775, Hemingway's Code), which reads as follows:
"No person shall operate a motor vehicle on a public highway, or street, avenue or alley of any city, town or village in this state at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, or so as to endanger the life or limb of any person or the safety of any property, or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate of speed than fifteen miles per hour, or elsewhere in any incorporated city, town or village at a greater rate of speed than fifteen miles per hour, or elsewhere outside of any incorporated city, town or village at a greater rate of speed than thirty miles per hour, subject, however, to the other provisions of this act."
The provision that no person shall operate a motor vehicle on a public highway at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway and the safety of life and property, does not enlarge the maximum rate fixed in the latter part of the section, but is rather a limitation upon the right to operate such a vehicle at the maximum rate. Leaving out the intervening clauses, this statute simply provides that no person shall operate a motor vehicle in any event on a public highway outside of any incorporated city, town, or village at a greater rate of speed than thirty miles per hour, "subject, however, to the other provisions of this act;" that is to say, that the right to maintain a speed of thirty miles per hour is limited by the other provisions of the act which require that the speed shall at all times be regulated so as to conserve the safety of life, limb, and property, and which limit speed to fifteen miles per hour on "any public highway where the territory contiguous thereto is closely built up." *Page 272
The appellant next seeks a reversal on the ground that the order permitting an amendment of the affidavit was not entered on the minutes until after the trial of the cause, and that the order as entered did not specify precisely the amendment, as required by section 1509, Code of 1906 (section 1267, Hemingway's Code). The last above-mentioned section is applicable only to amendments of indictments, while section 1511, Code of 1906 (section 1269, Hemingway's Code), provides that:
"When an appeal is presented to the circuit court in any criminal case from the judgment or sentence of a justice of the peace or municipal court, it shall be permissible, on application of the state or party prosecuting, to amend the affidavit, pleading, or proceedings so as to bring the merits of the case fairly to trial on the charge intended to be set out in the original affidavit; the amendment to be made on such terms as the court may consider proper."
It is not necessary, however, to here decide whether the same strictness is required in amending an affidavit as is required by section, 1509, Code of 1906 (section 1267, Hemingway's Code), in amending an indictment, for, if it be conceded that an order of the court, precisely specifying the amendment should have been entered on the minutes, it will avail this appellant nothing, for the reason that no specific objection was made in the court below on that ground. In the case of Richburger v. State, 90 Miss. 806, 44 So. 772, in which was involved the amendment of an indictment, the court said:
"It does not appear that an order of court allowing the amendment, specifying it precisely, was entered on the minutes, as required by Code 1906, section 1509, but no objection was made in the court below to the amendment on this ground. Had objection been made there, even in the motion for a new trial, the order would no doubt have been entered, as it could have been at any time, nunc pro tunc as of the date when the entry should *Page 273 have been made. The absence from the record of the minute entry cannot, therefore, be considered by this court."
There is no merit in the appellant's criticism of the one instruction granted to the state, and we find no reversible error except as to the penalty imposed by the learned circuit judge. The appellant was charged and convicted as for a first offense, and section 5787, Hemingway's Code, which fixes the penalty for a violation of the section regulating the speed of motor vehicles, provides a maximum penalty of one hundred dollars for a first offense. The court below sentenced this appellant to pay a fine of fifty dollars and to serve thirty days in jail. Under section 5787, Hemingway's Code, imprisonment for thirty days may be imposed only in case of a proper charge and conviction for a third offense. Consequently, the judgment of the court below sentencing the appellant will be reversed, and the cause remanded for proper sentence; otherwise the cause is affirmed.
Remanded for proper sentence; otherwise affirmed.