
    The People of the State of New York, Respondent, v. William H. Ellis, Appellant.
    
      Ah automobile traveling• eighteen miles an hour in the closely built portion of the city of New York — it is not an offense under the Highway Law — where theoffense is charged, to have been committed under the Highway Law, the driver cannot be convicted under section 666 of the Penal Code.
    
    Sections 163 and 169a of the Highway Law (Laws of 890, chap. 568), as amended by chapter 635 of the Laws of 1903, provide as follows:
    : '‘§163. * '* * FTo ordinance, rule or regulation adopted by the authori- - ties of any city in pursuance of this section or of any other law shall require an automobile or motor vehicle to travel at a slower rate than eight miles per hour within the closely built up portions of such city, nor at a slower rate of speed than fifteen miles per hour where the houses in such city upon any highway are more than one hundred-feet apart. * * *
    “ § 169a. * * * Any person who shall violate any of the provisions of this statute, or of any speed ordinance adopted pursuant hereto, upon conviction thereof, shall, in addition to the penalties provided in section one hundred and sixty-nine b, be further punished for a first oSense by a suspension of his right to run an automobile for a period of not less than two weeks.”
    
      Held, that such sections of the Highway Law do not purport to fix a rate of speed, or make it a crime to exceed any particular rate, but that they simply operate-to prevent the authorities of a city from fixing a lower rate of speed for automobiles than eight miles an hour;
    That an information which states that the defendant propelled an automobile-through the closely built portion of the city of New York at a speed of eighteen miles an hour, and that the right to operate an automobile at a greater speed, than eight'miles an hour is not permitted by any ordinance of said city,. “ Wherefore, deponent charges defendant with having violated chapter 625 of the Laws of 1903,” does not charge the commission of a crime;
    That a conviction under such an information could not be sustained upon proof that the defendant had violated section 666 of the Penal Code relating to the-speed of automobiles on city streets.
    Appeal by. the defendant, William H. Ellis, from a judgment of the Court of Special Sessions of the Peace of the city of. New York,. entered on the 7th day of August, 1903, convicting him of the crime of speeding an automobile at a rate prohibited by law.
    
      Alfred A. Wheat, for the appellant.
    
      Robert C. Taylor, for the respondent.
   McLaughlin, J.:

On the" 14th of July, 1903, the defendant was arrested by a police officer of the city of Hew York and taken before a magistrate where the following complaint was made against him:

City and County of New York, ss:
“ Arthur B. Ennis * * "* being duly sworn, deposes and says-that on the 14th day of July, .1903, at the city of Hew York, in the county of Hew York, William H. Ellis did operate, drive and cánsete be propelled an automobile or motor vehicle in and along Eighth avenue between One Hundred and Eleventh and One Hundred and Fourteenth streets in the city and county of Hew York at twelve o’clock,midnight of said day at a greater rate of ¡speed than eight miles an hour, to wit, at the rate of eighteen miles an hour, then and there passing houses less than one hundred feet apart on a high- ■ way through the closely built portions of said city and county; that to operate or drive an automobile or motor vehicle at a speed greater than eight miles an hour is not permitted by any ordinance of the said city. Wherefore, deponent charges defendant with having violated Chapter 625 of the Laws of 1903 of the State of Hew - York and prays that he may be dealt with according to law.
“ ARTHUR B. EHHIS.
“ Sworn to before me this 15th day of July, 1903.
“ Zeller, City Magistrate.”

Upon this complaint he was held by the magistrate for trial in the Court of Special Sessions in the city of Hew York where he was duly arraigned, pleaded not guilty, tried, convicted and sentenced to pay a fine of twenty-five dollars or stand committed until the fine be paid, but not exceeding ten days, and in addition thereto was suspended, for the period of two weeks, from the exercise of his right to run an automobile. This appeal is taken from the judgment of conviction.

At the trial evidence was given sufficient to establish the truth of the charge made against the' defendant, viz., that at the time, place and under the conditions stated, he did operate an automobile at the rate of eighteen miles an hour, but it is urged that the judgment of conviction must, nevertheless, be reversed because neither the complaint charged, nor the evidence established, the commission of a crime under this statute. Whether or not defendant’s contention be correct depends, of course, upon the statute itself, which, so far as the same affects the question here presented, reads as follows:

“§ 163. * * * Ho ordinance, rule or regulation adopted by the authorities of any city in pursuance of this section or of any other law shall require an automobile or motor vehicle to travel at a slower rate than eight miles per hour Within the closely built up portions of such city, nor at a slower rate of speed than fifteen miles per hour where the houses in such city upon any highway are more than one hundred feet apart. * * *
“ § 169a. * * * Any person who shall violate any of the provisions of this statute, or of any speed ordinance adopted pursuant hereto, upon conviction thereof shall, in addition to the penalties provided in section one hundred and sixty-nine-b, be further .punished for a first offense by a suspension of his right to run an automobile for a period of not less than two weeks.” (Laws of 1890, chap. 568, as amd. by Laws of 1903, chap. 625.)

■ It will be noticed that the statute does not fix any rate of speed at which an automobile may be run, nor does it confer upon the municipal authorities power to pass ordinances regulating the speed with reference thereto; on the contrary, it merely limits the right which the authorities now have under existing laws; In the city of New York the right to regulate the speed of automobiles on the public streets is conferred upon the board of aldermen by section 1454 of the charter, and the law of 1903 simply limits its power to the extent of preventing it from fixing a lower rate of speed for automobiles than eight miles per hour. This is all -that it does. It does hot purport to fix a rate of speed or make it a crime to exceed any particular rate. If this be true, then the complaint made against the defendant did not allege any facts constituting a violation of the. law, nor did the evidence offered show such violation, and he should have been discharged.

Indeed, the learned district attorney conceded upon the oral argument, as well as in the brief presented, that the portion of the judgment appealed from which prohibits the defendant from operating an automobile for a period of two weeks is erroneous, because it was not established that he. had violated any of the provisions of the act of 1903, but he nevertheless urges that the remainder of the judgment should be affirmed inasmuch as the proof established that the defendant had violated the provisions of section 666 of the Penal Code, a portion of which reads as follows; A person * * * who drives or operates an automobile or motor vehicle * * * upon any * * * public highway within any city * * * at a greater rate of speed than eight miles per hour, except where a greater rate of • speed is permitted by the ordinance of a city * * * is guilty of a misdemeanor and shall be fined, for the first offense, not exceeding the sum of fifty dollars.” , The proof did establish a violation of this section, but the trouble with the contention of the learned district attorney is that the defendant was not charged, tried, convicted nor sentenced for a violation of this statute. Before a person can be legally convicted of a crime he is entitled to be informed of precisely the charge which is made against him, to the end that he may properly defend himself. (People v. Dumar, 106 N. Y. 502; People v. Stark, 136 id. 538.) Defendant was charged, tried and sentenced for violating the act of 1903. His defense was directed to showing that he was not guilty of such violation. Had he been charged with the commission of another crime, viz., violating section 666 of the Penal Code, we are unable to say what defense lie would have made. He would have had the right to prove that an ordinance had been passed by the city permitting him to run an automobile at the rate of speed at which he was running his at the time he was arrested, or to question the constitutionality of this section. But it is useless to speculate what defenses he might have made, inasmuch as he was not afforded an opportunity to make any defense under this section, and, manifestly, cannot now be convicted of the crime specified therein.

It follows that the judgment appealed from must be reversed and the defendant discharged.

Van Brunt, P. J., O’Brien and Laughxin, JJ., concurred; Patterson, J-., concurred in result.

Judgment reversed and defendant discharged.  