Leonard v. State

• Decision Date: 08 February 1955
• Docket Number: 6 Div. 849
• Citation: 38 Ala.App. 138,79 So.2d 803
• Parties: Alex LEONARD v. STATE.
• Court: Alabama Court of Appeals

Page 803

79 So.2d 803

38 Ala.App. 138

Alex LEONARD v. STATE.

6 Div. 849.

Court of Appeals of Alabama.

Feb. 8, 1955.

Rehearing Denied March 15, 1955.

D. H. Markstein, Jr., and John W. Cooper, Birmingham, for appellant.

Si Garrett, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., for the State.

PRICE, Judge.

This prosecution is based on Section 89 of Title 36 of the 1940 Code, as amended, and was begun by affidavit in the Jefferson County Court of Misdemeanors. From the judgment of conviction in that court defendant appealed to the circuit court, where the Solicitor filed his complaint charging the defendant with operating a motor vehicle, 'to-wit a truck, upon the public highways of Jefferson County, Alabama, with an axle weight in excess of 18,000 pounds.'

According to the State's evidence the offense occurred in Jefferson County on July 8, 1953. The truck was weighed at the New Merkle scale weighing platform on Alabama Highway 91, south of Birmingham. The weight on the number 2, or pull, axle was measured at 19,400 pounds.

For the State, two highway patrolmen and a 'weight man' all of whom were present at the weighing, testified in detail regarding the construction and operation of the scales. The salient portions of this testimony is thus set out in the brief of the Attorney General, and is fully borne out by the record:

'The weighing platform in question is parallel to the highway, constructed of concrete, and about ten or twelve feet wide and one hundred feet long. A depression some six or eight inches deep runs across the width of the platform and in this depression the scales are placed, one on each side of the platform, so that each wheel can be weighed. Dirt or gravel is placed in the depression around the scale boxes to keep them steady. As the truck, or truck and trailer, is driven along the platform it is stopped at each axle as the wheels of that axle come to rest on the scales. In this way the weight of each axle is determined. * * * the scales are reset or adjusted one or more times during the course of any one eight-hour weighing period by 'zeroing' them, that is, by turning a crank on the scales until two pointers on the dial are in alignment.'

The defendant was a truck driver for Floyd & Beasley Transfer Company and was hauling a load of general freight from the company's terminal at the time he was stopped at the weighing station. He testified the copy of the manifest given him showed the weight of the load to be within the legal limit, and he did not know the truck was overweight.

The company's terminal manager testified the weights shown on the manifest were copied from the shipping orders and the loaded truck was not weighed at the terminal before it left.

Appellant contends, (1) the scales were not established as being accurate scales, (2) Section 89 of Title 36, Code 1940 is unconstitutional; (3) when the statute is used in conjunction with Section 87 of Title 36, as amended by Act No. 827 of the 1953 legislature, Acts 1953, p. 1114, the burden of proof is misplaced and the defendant is denied due process of law.

It is provided in Section 87 of Title 36, Code 1940, that 'such designated weighing devices shall be checked by the weights and measures division of the department of agriculture and industries and certified to be correct within the tolerances prescribed under the rules and regulations established by the state department of agriculture and industries'.

Patrolman Gregory testified for the State that the scales were under his supervision and control and were checked for accuracy by the department of agriculture on March 27, 1953, the date of this weighing being July 8, 1953; that he was present on the occasion when they were checked. He was then asked whether or not a certification of accuracy was placed on the scale. The defendant objected on the ground the question called for testimony res inter alios acta. The court then read the amendment to Section 87, Title 36, enacted as Section 1 of Act No. 827, approved September 19, 1953, which states: 'A certificate issued by the chief of the division of weights and measures of the department of agriculture and industries, signed by such official, under oath, and counter-signed by the commissioner of agriculture and industries, in which the chief of the division of weights and measures certifies that scales, or weighing devices, have been checked and approved as required under the provisions of this section and section 85 of this chapter, and found to be correct, within prescribed tolerances, shall be received in any court as prima facie evidence of the fact that the scales or weighing devices designated and identified in such certificate have been checked and approved for accuracy in accordance with the requirements of this section and section 85 of this chapter, provided such certificate must show that the scales or weighing devices were checked for accuracy within a period of four months (120) days prior to the date on which the motor vehicle was weighed to determine whether such vehicle was being operated in violation of this chapter', and asked the witness, 'was that done?' The witness answered, 'Yes, sir, it was done.' The court overruled the objection and the defendant reserved an exception to the ruling on the ground, among others, that the act had not been passed at the time of this weighing. The court then sustained the objection, stating that he was holding this statute did not apply in this case. In response to questions by defense counsel the witness stated he had the certificate that was mailed to him by the commission.

At the close of the State's testimony defense counsel moved that the State's evidence be excluded because the certificate as provided for by said Act No. 827 as to the accuracy of the scales, had not been introduced in evidence.

The court reminded counsel that the objection to evidence relative to such certificate had been sustained at counsel's insistence. Counsel then added as a further ground of said motion that all the testimony with reference to the accuracy of the scales was based on hearsay and there was no competent evidence on which to base a finding that the scales were accurate. The court overruled the motion and defendant excepted.

There is no merit in defendant's contention that officer Gregory's testimony as to the inspection of the scales by the department of agriculture and industries was based on hearsay. The witness testified he was present and personally observed the test. Moreover, his testimony as to the inspection was admitted without objection. The defendant's objection was sustained as to the testimony concerning the certificate of accuracy, purported to have been issued as to the scales, and defendant could not be heard to complain because of its non-introduction in evidence. The motion to exclude the evidence was properly overruled.

The defendant further contends that the scales were shown to be inaccurate by the State's testimony that one of the scales had been broken at one time and returned to the factory for repair; that the scales were transported from one weighing station to another in a pick-up truck, and by a demonstration in court, on a scale said to be of the type used at the weighing stations, in which defendant's counsel weighed himself, his weight varying from 170 to 220 pounds, depending on his position on the scale, counsel first having stated his correct weight to be 160 to 170 pounds.

It is also defendant's contention there was no proof that the scales were used in a manner to insure accurate readings. Counsel asserts in brief: 'The State's witnesses testified that it was absolutely necessary that the scales be operated while level to record accurate readings. There was no competent testimony that the concrete platform in which the scales were placed for the weighing was level, no testimony that the scales themselves were level and did not have dirt or gravel underneath them at the time of the weighing, no testimony that the vehicles moving across the scales had not disturbed the scale boxes so as to allow dirt and gravel to get underneath the scale boxes and make them unlevel. The State's witnesses testified that there was no means to check whether or not the scales were being operated in a leavel condition prior to the weighing.'

It is said in the annotation in 21 A.L.R.2d at page 1200, that 'As far as the decisions directly touching the question to be annotated are concerned, an almost tomb-like silence is to be found on whether there is any presumption, or where the burden of proof lies, as to the accuracy of...