State v. Robinson

¶1The defendant, Rube Robinson, was charged by a bill of information filed by the District Attorney for the Parish of. Catahoula with having, on October 9, 1951, negligently killed one Bunion Posey. The homicide resulted from a collision between two trucks,- one of which was being driven by the defendant, on the public highway between Sicily Island and Fowles. Defendant waived a trial by jury and elected to be tried before the District Judge who, after hearing the case, found him guilty and sentenced him to serve three years at hard labor in the State Penitentiary. He now brings this appeal presenting certain bills of exception which were reserved during the course of the trial and which have been perfected.

¶2In the first of his bills of exception defendant complains of the ruling of the District Judge under which a State - Trooper, R. C. McGuffee, was permitted to testify, over objection, as to the speed at which the truck being driven by defendant was traveling at the moment of impact with the other truck. The contention made is that the State Trooper, who it is said arrived at the scene of the accident some forty-five minutes after it happened, testified that there were no skid marks or road marks at the scene, and therefore it is contended there .were no signs or circumstances by which he could determine the speed of the truck.

¶3It appears from the record that the State . Trooper was offered by the State as an expert witness and qualified as such without objection on the part of defendant. In his per curiam the District Judge states that he *599felt that the witness, from his long experience as a State Trooper, was competent to give expert testimony in this type of work and was able, from all the facts shown by his investigation, to arrive at an estimate of the speed of the truck. The State Trooper who stated that he reached the site of the accident about thirty minutes after it had occurred, testified that from the force of the impact and the distance covered by both trucks after the blow, he estimated the speed of the truck defendant was driving as at forty or forty-five miles per hour. Testimony of that character was admissible as evidence of the speed of the truck at the time of the accident. See Code of Criminal Law & Procedure, LSA-R.S. 15:464; Wharton’s Criminal Evidence, Vol. 2, p. 1777, Sec. 1017, p. 1782, Sec. 1021. See also Blashfield Cyclopedia of Automobile Law and Practice, Vol. 9, Part 2, sections 6233 and 6234. The trial judge properly admitted and gave effect to the testimony of the witness on this point.

¶4Counsel for both defendant and the State have combined the next three bills for the purpose of argument. The first of these relates to questions propounded to the witness, Aubrey Covington, by whom the defendant was employed at the time of the accident. On cross-examination of this witness, testimony was sought to be elicited regarding the past driving experience and ability of the defendant and whether or not he had ever cautioned him about his fast driving. The other two bills have reference to the testimony of two other witnesses, Robert Hardy and Mrs. Roy Zeigler, concerning conversations they had with the witness, Covington, several days after the accident, in the course of which Covington is alleged to have stated to them that he had warned the defendant on several occasions about his fast driving.

¶5On examination we find, with respect to the first of these three bills, that the record is a bit confusing as to whether the objection on which it is predicated was made to the testimony that is now complained of as being hearsay, irrelevant and highly prejudicial. Be that as it may, and not withstanding the fact that the testimony may have been irrelevant, we do not think that it was prejudicial; certainly not to such extent as to warrant setting aside the judgment or granting defendant a new trial. Article 557 of the Code of Criminal Law and Procedure, LSA-R.S. 15:557 provides that “No judgment shall be set aside, or a new trial granted by any appellate court of this state, in any criminal case, on the grounds of … or the improper admission or rejection of evidence, … unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” The entire record is before us in this case, and we *601have carefully examined it, and even if it were to be conceded that the testimony objected to was irrelevant we cannot see how its admission was prejudicial to any substantial rights of the defendant.

¶6The other bills, as we have already stated, have to do with the testimony of two witnesses, called by the State on rebuttal, to impeach the testimony of the witness, Covington, who did not distinctly admit making statements to them concerning the defendant’s fast driving. The testimony of the first of these two witnesses was that it was immaterial and hearsay and to that of the second, that it was an indirect attempt to cast a reflection on the defendant under the guise of impeaching one of his witnesses. The district judge in his per curiam to each of these bills states that he admitted the testimony of both witnesses solely for the purpose, of impeaching the testimony of defendant’s employer, Covington, and that he did not consider that it touched upon the defendant’s character in any manner. Under Article 493 of the Code of Criminal Law and Procedure, LSA-R.S. IS :493, the testimony was admissible for the purpose of impeachment.

¶7We note another bill in the record which relates to a State witness named Copeland who was recalled to testify as to the speed of the truck defendant was driving at the time of the collision. The complaint on this bill is that the State was attempting to impeach one of its witnesses under the guise of impeachment of the defendant and that to admit such rebuttal testimony was prejudicial. This bill is not discussed in brief of counsel for defendant and we assume that it has been abandoned. Even were it to be considered, however, we think it has been properly disposed of by the per curiam of the trial judge who states that the testimony was admitted not to impeach another State witness but only in rebuttal of the testimony of the defendant concerning the movements of the truck he was driving..

¶8The last bill of exception has to do with the denial of a motion for a new trial. The motion was based upon the statement of the court to the effect that defendant found himself in a difficult situation due solely to his negligent operation of the truck and that such negligence caused the death of decedent. Counsel for defendant contend that this shows that this case is not one of the gross “disregard of the interest .of others” nor the “gross deviation below the standard of care expected to be maintained by a reasonably careful.man under like .circumstances”, LSA-R.S. 14:12, and they maintain therefore that the application of the law in this case was erroneous. This in our opinion amounts to a plea that the verdict is contrary to the law and the evidence. Under the provisions of the Code of Criminal Procedure, LSA-R.S. 15:516, “Neither the appellate nor supervisory jurisdiction of the Supreme Court can be invoked to review the granting or the refusal to grant a new trial except for error of law.” We find no misapplication of the law, and.find*603ing also that there is no merit in any of the bills of exception presented, it follows that the conviction and sentence ought to be affirmed.

¶9For the reasons stated the judgment is affirmed.

¶10(dissenting).

¶11I think that the trial judge committed reversible error in permitting R. C. McGuffee to give his opinion or guess that defendant was driving the truck involved in the accident at a speed of 40 to 45 miles per hour at the moment of the impact with the other truck. I say “opinion” or “guess” because it is conceded that McGuffee did not witness the accident, having arrived on the scen'e not sooner than 30 minutes after-wards. Accordingly, since he did not observe the speed at which defendant’s truck was travelling, his statement was clearly hearsay and could only be received on the theory 'that he was an expert on the speed of motor vehicles qualified, as such, to give reliable evidence grounded on calculations made of skid marks or other matter which came under his observation after the accident: Articles 463, 464, 465 and 466, Code of Criminal' Procedure, LSA-R.S. 15:463, 464, 465 and 466. The trial judge admitted the evidence on that basis and the majority, in- approving his ruling,, state that “It appears from the record that the State Trooper was offered by the State as an expert witness and qualified as such without objection on the part of defendant”.

¶12I do not find that the record supports this observation. While McGuffee testified that he had been a State Trooper for 12 years and that he had been schooled in traffic laws and rules of the highways, he gave no evidence with regard to his training and experience in calculating the speed of a moving object which he had not seen in motion. To be specific, the record shows that, when McGuffee was first placed on the stand by the State, he was asked whether he had any special training to qualify him for his position as State Trooper, which he had held for more than 12 years. He responded that he would not say that he-had special training but that he had been given the same schooling and had the same experience as other troopers pertaining to the laws and rules of the highways. He then testified that he reached the accident some 30 minutes after its occurrence and stated the positions in which he found the trucks involved therein and other physical data. Following his cross-examination, he was asked by the district attorney on redirect if he could determine “ … the speed of the .seed truck travelling at the point of the impact there?”. Counsel for the defense immediately objected on the .ground that, since the witness was not .present, his statement would be hearsay. The objection was o.verr.uled and McGuffe.e permitted to spec*605ulate that the speed of the truck was 40 or 45 miles per hour.

¶13At no time, during the trial, did the district attorney tender the witness as an expert nor was any attempt made to lay a foundation, as required by law, LSA-R.S. 15:466; State v. Damico, 213 La. 765, 35 So.2d 654, for the admission of evidence as to speed by showing the training and experience, either scientific or otherwise, possessed by the witness. McGuffee says that he bases his opinion on the nature of the impact and the distance both trucks travelled thereafter. Liberally conceding, for the sake of discussion, that this type of opinion might be voiced by one having special knowledge in estimating speed of moving objects from the result of their impact,1 there is nothing here exhibiting that McGuffee had any schooling whatever on the subject, or had made tests, or, indeed, had even witnessed a collision between two moving objects. In its final analysis, the view of the majority is simply that, since McGuffee had been a state trooper for 12 years, he must be qualified. In support of the opinion that testimony of the character given by him is admissible, Blashfield’s Cyclopedia of Law and Practice, Vol. 9, Part 2, Sections 6233 and 6234 are cited.

¶14The statements contained in the citations from Blashfield, relied on by the majority, which deal specifically with personal injury cases, do not sustain the view that a police officer is qualified to give-unobserved estimates of the speed of an automobile, based on conditions obtaining after an accident, as expert evidence. On the contrary, Section 6233 merely provides that the speed of an automobile may, like any other fact, be established by circumstantial evidence and Section 6234 declares that the physical effect of the impact of vehicles is a material circumstance to be considered in determining whether the offending vehicle has been operated at a negligent rate of speed. I have no quarrel with these pronouncements but they are without pertinence to the question of the admissibility of opinion evidence to prove speed.

¶15Albeit, the section of Blashfield, which is appropriate to this case, is Section 6238 of Part 2, Vol. 9, entitled “Nonobservers’ Testimony as to Speed”. A perusal of that section will reveal that it fully supports the contention of defense counsel that, in the *607absence of skid marks or road marks at the scene of the accident, expert testimony as to speed is inadmissible. And it is further stated therein that, in order for witnesses to be qualified as experts of this sort, they “ … should also show preliminarily their familiarity with automobiles, their makes, operation, and driving, as well as the time when the witnesses were at the scene of the collision and the extent of the observations made by them.”

¶16The majority also cite Sections 1017 and 1021 of Wharton’s Criminal Evidence, 11th Ed., in approving the admission of Mc-Guffee’s statement anent the unobserved speed of the truck. These sections of Wharton, like the citations from Blashfield, do 'not sustain the opinion. Section 1017 merely sets forth that a witness, who has qualified'as an expert, is subject to the same rules of examination as other witnesses. And Section 1021 declares that the .circumstance that an expert has personal •knowledge of the facts of a case does not disqualify him to testify regarding those facts and that he may also voice his opinion in answer to hypothetical questions.

¶17Being of the view that defendant is entitled to a new trial for the reasons above set forth, it is unnecessary that I express an opinion on the other Bills of Exceptions tendered by defendant.