Hardaway v. State
| Decision Date | 03 May 1957 |
| Citation | 302 S.W.2d 351,6 McCanless 94,202 Tenn. 94 |
| Parties | , 202 Tenn. 94 L. O. HARDAWAY v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
David C. Rutherford and James W. Rutherford, Nashville, for plaintiff in error.
Nat Tipton, Advocate General, Nashville, for the State.
Mr. Hardaway was indicted for violating the speed limit on the morning of July 12, 1955, about half past eleven, as he was traveling north on the Gallatin Pike. He was convicted and fined $10. He has appealed and assigned two errors, (1) That the evidence preponderates against his guilt and in favor of his innocence, and (2) That the Court erred in admitting evidence of a radar device and computation therefrom which was the only evidence by which the officer fixed the speed of his car at the time.
It was shown by the arresting officer, a Tennessee Highway Patrolman, that he was alone on this occasion and was in an automobile which was equipped with radar which consisted of a sort of box on the rear fender and inside the car the speed of another automobile was registered in two ways, (1) by a needle which indicated the speed, and (2) by a graph on which the machine registered with a tracing to show the speed of the car. The officer was not an expert in radar and did not understand what made it 'tick' so to speak, but he followed instructions according to which he parked on the roadside parallel to the road and pointing in the direction from which the cars to be checked would be approaching the rear of his car. While sitting there he noticed the defendant's automobile approaching his rear at a 'fast rate' of speed, so as it passed him he first looked at the needle on the dial and then checked the graph and they showed that the defendant was traveling at the rate of 43 miles an hour in a 30-mile speed zone. He immediately gave chase and caught up with the defendant when he stopped for a traffic signal and gave him a ticket for speeding. Admittedly, as the defendant approached the traffic signal he was within the 30-mile speed limit. The officer did not attempt to fix the speed of the car by anything other than the radar device.
It was shown by another officer that the radar device had been calibrated, that is tested, for accuracy both before and after the arrest. These tests showed that the machine was performing substantially accurately, although a small fraction under the exact speed. The arresting officer had also testified that he had been working with the radar about six months and he had never found it to be either over or under the correct speed.
The State called as a witness Dr. Kopper, an electronic expert of Johns Hopkins University and the author of a number of articles on the subject, one of which is exhibited to his testimony and appears in Vol. 33, page 343, of the University of North Carolina Law Review. This witness has testified also in a number of cases in other states involving questions of the use of radar in speeding cases.
He explained the theory upon which the radar apparatus operates; that it is accurate as a scientific fact and it portrays the speed of passing or moving objects with substantial accuracy; that any deviation in the operation of a machine caused by a lowering of the voltage in the battery on which the machine depends will cause it to register less than the actual speed so that any such accuracy is in favor of the motorist rather than against him; also he admitted that an increase in the voltage would have the opposite effect, but of course it is a matter of common knowledge that it would be a rare phenomenon for the battery of a modern automobile to grow stronger rather than to take the usual course of eventually growing weaker. He testified also that if the machine tested substantially correct both before and after the particular occasion, it would naturally be correct in the interim.
As to the qualifications of the operator of such machines he testified that the necessary information for the operation of same is not complicated and does not require very much training in order for the operator to use it in the determination of speed of a moving object. The officer here had had three hours training initially and six month experience in use of same.
There was exhibited also in the evidence the graph which was made on this occasion which contains all of the necessary data identifying the defendant, the time, the place, etc.
Under the first assignment of error defendant relies upon T.C.A. Sec. 40-803, which in substance provides that an officer may arrest without a warrant for a public offense committed, or a breach of the peace threatened, in his presence. Also the statement in McCanless v. Evans, 177 Tenn. 86, 146 S.W.2d 354, 356, wherein it is said:
'Where an officer is apprised by any of his senses that a crime is being committed, it is being committed in his presence, so as to justify an arrest without warrant.'
It is argued that the offense was not committed in the presence of the officer for the reason that the defendant's car had already passed when the officer observed the radar, and, therefore, it must follow that some other car or object was behind the patrol car that caused Officer Williams to see the radar register 43 miles an hour.
Counsel does not state the evidence correctly. Officer Williams testified that he saw the defendant's car coming as it approached the rear of his car and it is abundantly clear from his testimony that there was no other car on the scene at the time; in fact, Dr. Kopper in examining the graph testified to the same effect. It is a fact, however, that the officer depended on the radar reading to determine the exact speed of the car and not upon his own visual estimate from watching the car.
Therefore, the solution of this assignment must depend upon the answer to be given to the second assignment, because if the radar evidence is admissible then the officer had as much right to rely upon it as he would have had to rely upon the speedometer in his automobile if he had been chasing the defendant's car and keeping abreast of him while he observed the action of the speedometer on his own car. We have universally accepted the speedometers on automobiles as being...
To continue reading
Request your trial
-
State v. Graham
...A--see People v. Duskin, 1958, 11 Misc.2d 945, 174 N.Y.S.2d 527; A--State v. Moffitt, 9 Terry, Del., 210, 100 A.2d 778; Hardaway v. State, Tenn. 1957, 302 S.W.2d 351; Dietze v. State, 1956, 162 Neb. 80, 75 N.W.2d 95; People v. Sarver, 205 Misc. 523, 129 N.Y.S.2d 9; Peterson v. State, 1957, ......
-
State v. Hanson
...147 N.E.2d 728 (1958); Ohio East Cleveland v. Ferell, 168 Ohio St. 298, 7 Ohio Ops.2d 6, 154 N.E.2d 630 (1958); Tenn. Hardaway v. State, 202 Tenn. 94, 302 S.W.2d 351 (1957) (dictum); Tex. Wilson v. State, 168 Tex.Cr.R. 439, 328 S.W.2d 311 (1959) (apparently recognizing rule).3 Dr. John M. K......
-
State v. Primm
...Peterson v. State, 163 Neb. 669, Syl. P 3, 80 N.W.2d 688 (1957); State v. Cardone, 146 N.J.Super. 23, 27, 368 A.2d 952 (1976); Hardaway v. State, 202 Tenn. 94, Syl. P 2, 302 S.W.2d 351 (1957); State v. Doria, 135 Vt. 341, 342, 376 A.2d 751 The accuracy of a particular radar unit can be esta......
-
State v. Kane
...562, 170 N.Y.S.2d 335, 147 N.E.2d 728 (1958); East Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958); Hardaway v. State, 202 Tenn. 94, 302 S.W.2d 351 (1957); Wilson v. State, 168 Tex.Crim. 439, 328 S.W.2d 311 (1959); State v. Doria, 135 Vt. 341, 376 A.2d 751 (1977); In re Bardwel......