Kansas City v. Hill, 24951
| Decision Date | 07 April 1969 |
| Docket Number | No. 24951,24951 |
| Citation | 442 S.W.2d 89 |
| Parties | KANSAS CITY, Missouri, Plaintiff-Respondent, v. Danny L. HILL, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Roy W. Brown, Compton & Brown, Kansas City, for appellant.
Herbert C. Hoffman, Charles A. Lewis, Kansas City, for respondent.
SPERRY, Commissioner.
This is an appeal by defendant, Danny L. Hill, from a judgment of the Circuit Court of Jackson County (trial was to the court), finding him guilty of violating the ordinance of Kansas City in that he operated a motor vehicle on a public street in Kansas City at a speed of 43 miles per hour in a 35 mile per hour speed zone. He was sentenced to pay a fine of $25.00 and costs.
The appeal rests on the contention that evidence based on radar readings was introduced over the objection of defendant; that such evidence, in this case, was incompetent; that there was not sufficient evidence in addition to radar, to make a prima facie case of violation of the ordinances: 'that the city wholly failed to prove the violation of city ordinance 58.280(6)--(speeding) by competent credible evidence beyond a reasonable doubt'.
No issue is made as to the validity of the ordinance involved herein, which prohibited a speed in excess of 35 miles per hour at the time and place where the violation is charged to have occurred. The legal sufficiency of the information, upon which the prosecution is based, is not challenged.
Defendant contended that the accuracy of the radar unit, at the time and place the arrest was made, was not sufficiently shown. The rate of speed shown on the speedmeter dial was 43 miles per hour. The speed measuring accuracy of the speedmeter was shown by evidence tending to prove that it was tested and shown to be accurate by the use of two separate tuning forks. Defendant contends that the accuracy of the tuning forks was not sufficiently shown. In City of St. Louis v. Boecker, Mo.App., 370 S.W.2d 731, 738, it was held that the value of any test of a radar speedmeter depends upon the accuracy of the measuring device against which it was tested. We agree. It was the duty of plaintiff here to establish that fact by evidence.
Corporal Allmon, a member of the Kansas City Police Department, stated that, on May 9, 1967, he was operating a radar unit at about 65th and Ward Parkway; that, thirty minutes after arrival there, defendant's motor vehicle 'came through' the speed check; that he had set up the radar unit for operation; that he had checked its accuracy by means of two separate calibrated tuning forks; that one was calibrated at 35 miles per hour and the other at 50 miles; that, after setting up the machine and after it began registering, it was given a crystal check to ascertain if it was functioning; that, thereafter, he vibrated the 35 mile fork over the head of the machine, and likewise the 50 mile fork; that the dial read correctly, 35 and 50 miles per hour; that the machine operated constantly thereafter until defendant's vehicle came through; that there was no interference from objects other than this vehicle while it was going through; that, once each month, he takes the tuning forks to Dominator Corporation in Kansas City, where they are tested for accuracy on a Berkley Beckman Frequency Counter, an electronic device that measures their frequency; that he witnessed the calibration of each of these forks, as stated, on May 4, 1967, and on May 27 and on June 1, (the arrest was made May 9); that, in his opinion, no adjustment was necessary to be made; that this was a visual observation, that is, he watched the vehicle and the dial and observed and watched the speed. At this point witness was asked what reading he observed, as to speed, and defendant objected on the ground that there had been no showing that the radar machine was accurate in measuring speed except that it had been tested by tuning forks; that this, standing alone, did not establish the accuracy of the machine at the time it was being used.
The objection was overruled and witness stated that the radar speedmeter indicated that the vehicle passed through at an indicated speed of 43 miles per hour with no surges shown, the reading was steady. He stated that, as defendant's vehicle approached him, witness stepped out of the car and signalled defendant to pull to the curb; that he issued a summons to defendant; that he then again tested the unit with both forks; that it was operating properly.
In response to a question as to whether, based on his driving experience and on his having observed the speed of motor vehicle being operated by others, he was able to form a judgment of the speed at which the vehicle was travelling, in relation to the posted speed limit of 35 miles per hour, independent of the radar unit, he answered 'yes', and stated that, in his opinion, the speed was in excess of 35 miles per hour. Defendant objected to the introduction of this testimony on the ground that, according to the information filed, plaintiff charged and relied solely on the radar reading. The court overruled the objection and no point is made in the brief regarding this action.
The witness stated that the speedmeter reading began at a point more than a block distant and continued as the vehicle travelled northbound on Ward Parkway. He stated that he had 18 months of instruction on the use of radar in the U.S. Air Force; that he had driven motor vehicles for twenty years; that he had observed the movement of traffic and its speed by using a stop watch; that he had observed the radar speed in this case by looking at a dial similar to those used on automobile speedometers; that he set up the unit at 6:30 P.M., checked defendant's vehicle at 7:30 P.M., and broke down the machine at 7:50 P.M.
Defendant testified to the effect that, as he travelled toward the police car he recognized it as a police car; that he looked at his speedometer; that it was registering 35 miles per hour; that he continued at that speed, neither slowing nor accelerating...
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