The opinion
On Petition for Rehearing
JONES, J.
The Attorney General has filed- a petition for rehearing in which our attention is directed to 47 O. S. 1941 Sec. 95, Sub. (b) which reads:
“No truck, truck-tractor with semi-trailer attached, or trailer, shall travel or be moved upon any public highway, when the weight of any such vehicle or vehicle and load is 20,000 pounds or less, at a rate of speed in' excess of thirty-five (35) miles per hour. And when the weight of any such vehicle and load exceeds 20,000 pounds net such rate of speed shall not exceed thirty (30) miles per hour.”
On rehearing it is contended that the Bodge truck or pickup being driven by the defendant at the time of his arrest comes under the classification of a truck as defined by the above statute and therefore it was illegal for the defendant to drive such vehicle at a speed in excess of thirty-five (35) miles per hour.
In the original briefs filed by counsel for the defendant and by the Attorney General each contended that Tit. 47, O. S. 1941 Sec. 92 was the applicable statute which controlled in the disposition of the case. Although this court strongly disapproves of the action of the Attorney General in changing his position in his petition for rehearing to that which he maintained in the brief which was filed before the opinion was written, still if this court has erred in its opinion, in the interests of justice, we are glad to make a correction.
The record shows that the highway patrolmen who arrested the defendant filed a charge of speeding against him and that at the time said case came on *297 for trial defendant appeared with his counsel, whereupon the county attorney asked the court to dismiss the case with prejudice for the lack of sufficient evidence to convict, which order of dismissal with prejudice was made. The highway patrolmen who made the arrest of the accused did not contend that defendant was violating 47 O. S. 1941 Sec. 95, Subdivision (b), hereinabove quoted, but merely asserted in the trial court when they were testifying as witnesses that it was their opinion the defendant was violating the forty-five mile an hour speed limit. As heretofore shown in the opinion of the court, there was no statute fixing a forty-five mile per hour speed limit on any motor vehicle at the time of the arrest of the accused.
The dismissal of the speeding charge and the circumstances surrounding the arrest of the defendant convince us without doubt that the arrest of the defendant was on suspicion and the subsequent search was accordingly illegal. The allegation of excessive speed was merely a subterfuge which was used to attempt to justify an unlawful arrest. Under such a view of the record it therefore becomes unnecessary for us to decide whether the vehicle being driven by the accused was a truck as defined under the statute hereinabove quoted or is governed by the same regulations affecting all motor vehicles, Tit. 47 O. S. 1941 Sec. 92.
Rehearing is denied. Mandate ordered to issue forthwith.
BRETT, P. J., and POWELL, J., concur.