Tefke v. State

• Decision Date: 18 February 1969
• Docket Number: No. 182,182
• Citation: 6 Md.App. 139,250 A.2d 299
• Parties: Carroll Herman TEFKE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 139

6 Md.App. 139

250 A.2d 299

Carroll Herman TEFKE v. STATE of Maryland.

No. 182.

Court of Special Appeals of Maryland.

Feb. 18, 1969.

John B. Fox, Baltimore, with whom was David A. Hyman, Baltimore, on the brief, for appellant.

Bernard L. Selbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Hilary D. Caplan, Asst. State's Atty. for Baltimore City, Baltimore, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ANDERSON, Judge.

The appellant, Carroll, Tefke, was convicted of manslaughter by automobile in the Criminal Court of Baltimore, Judge William J. O'Donnell sitting without a jury. He was sentenced to one year under the jurisdiction of the Department of Correctional Services and was fined $500.

On appeal, the appellant raises the following questions:

I-Whether the testimony of Mrs. Kelly as to the speed of appellant's automobile was properly admitted in evidence?

II-Whether the trial court erred in denying appellant's Motion for Judgment of Acquital at the end of the State's case and at the end of the entire case?

III-Whether there was sufficient evidence to sustain the conviction?

The accident giving rise to these proceedings occurred on a clear dark night of December 7, 1967, at 7:30 p.m., at the intersection of Frankford Avenue and Walther Avenue in Baltimore. A plat made by an officer of the Accident Investigation Division of the Baltimore Coty Police Department set forth the physical conditions of the intersection in detail. Frankford Avenue runs east and west, and Walther Avenue runs north and south. To the east of the intersection, Frankford Avenue is divided by a center line and is 28 feet wide. There is a 5 foot sidewalk at the southeast corner. South of the intersection, Walther Avenue is divided by a 20 foot wide grass plot into north and south lanes. There are two northbound lanes, each 11 feet wide on level grade. Along the east curb of Walther Avenue is a 5 foot strip of grass and a sidewalk. North of the intersection, Walter Avenue widens so that its east and west curbs are offset by 8 feet from the corresponding curb lines south of the intersection. On the north side of the intersection Walther Avenue is divided by a 4 feet wide cement island. Reading from east to west, the traffic lanes on Walther Avenue north of the intersection are 21 feet and 13 feet in width (for the two northbound lanes), the island, and 10 feet, 10 feet, and 22 feet in width for the three southbound lanes, the first 10 foot lane being for left turning traffic. The intersection is governed by automatic traffic signals all phasing green-amber-red and red-green. The signals for northbound traffic on Walther Avenue are suspended one in each lane, about 3 feet north of the north curb extension line of Frankford Avenue. The speed limit on Walther Avenue is 30 miles per hour.

The appellant had been proceeding north on Walther Avenue; the deceased had been proceeding west on Frankford Avenue. The point of impact was 20 feet north of the southeast curb line of Frankford Avenue and 20 feet west of the northwest corner of the intersection. The deceased's vehicle came to rest facing southwest 41 feet north and 30 feet west of the point of impact. The appellant's vehicle was found straddling the concrete island facing southwest, 31 feet north and 30 feet west of the point of impact, with its left rear in contact with the right rear of the deceased's vehicle. The appellant's vehicle had heavy frontal damage from left to right, while the deceased's vehicle sustained heavy damage on the center of the left side. Just north of the rear of the appellant's vehicle was the vehicle of Mrs. Kelly; just west of the deceased's vehicle was the vehicle of Mr. Sleitzer. Both the Kelly and Sleitzer vehicles had also sustained damage.

The cause of death of the deceased was multiple traumatic injuries.

At trial Mrs. Elizabeth M. Kelly testified that she was southbound on Walther Avenue and had been stopped in the left turn lane next to the island for six or seven seconds waiting for a red light displayed against her, when she first observed the appellant's vehicle about 100 feet away from the intersection. She testified that she 'saw him just keep coming, and I glanced up and I saw that his light was red on that side of the street, the same as the light was red on my side of the street and I saw * * * no braking, no slowing down.' She saw the collision, and the front of her automobile was pushed sideways when the rear of the deceased's car came to rest against her front end. Mrs. Kelly had driven an automobile for 19 years and estimated the appellant's speed as being between 50 and 55 miles per hour.

Mr. William Seitzer testified that he was southbound on Walther Avenue and had been stopped for 2 or 3 seconds in the westernmost lane for a red light. He had seen the light change red for him when he was about 100 feet north of the intersection. He stated that he had heard, but not seen, the vehicles collide; and that his vehicel and Mrs. Kelly's vehicle arrived at the intersection at about the same time.

Officer Richard J. Taylor, who investigated the accident, testified that there were no skidmarks in or near the intersection but that at the point of impact there were tiremarks and digmarks. He stated that when he interviewed the appellant two hours after the collision he observed an 'odor of intoxicants on his breath', 'stale beer smell', and that the appellant was restless and irritated.

The appellant testified that after work on December 7, 1967, he went to a local tavern and had two or three glasses of beer, remaining in the tavern for 45 minutes. He left the tavern shortly after 7:00 p. m. and drove north on Walther Avenue south of Frankford Avenue occupying the left lane next to the grass median plot. He stated that he was driving at a speed of 25-30 miles per hour and that while approaching the intersection he observed that the automatic traffic signal was red; he looked (left) to the Frankford Avenue side of the light and observed that it was orange; he then entered the intersection on a green light. As he entered the intersection, he observed headlights from the right and applied his brakes. He testified that he did not see any lights until he entered the intersection because of a hedge-row on the southeast corner of the intersection. (This hedge-row does not appear on the investigating officer's plat, and appellant's was the only testimony referring to it). He stated that he was in a normal condition on the evening of the accident and knew what he was doing.

On cross-examination he testified that his driving speed was 25 miles per hour at a distance of 200 feet south of the intersection, but that he does not recall how fast he entered the intersection. He stated that he was 50 feet away from the intersection when the light changed green in his favor; that his first observation of the red light at the intersection was made when he was one block from the intersection; and that it took him 35 to 40 seconds to reach the intersection from one block away.

I-TESTIMONY AS TO SPEED

The appellant's contention that Mrs. Kelly should not have been allowed to testify as to the speed of appellant's automobile is not properly before us on appeal, since the trial transcript does not indicate that any objection to her testimony was made at trial. See Maryland Rules 522 d 2, 725 f (which applies the civil rule to criminal trials), and 1085.

However, the question presented is of some interest, and we will briefly elucidate our views on it. The appellant's contention is that Mrs. Kelly did not observe appellant's automobile from such a posture and for such time as would qualify her to testify to its speed. It is not open to question that observation of the matters to be testified to is an essential element in the qualifications of every witness. Lambert v. State, 197 Md. 22, 26, 78 A.2d 378 (1951); Wigmore, Evidence, § 650 (3rd ed.). In Lambert v. State supra, one of the issues was the admissibility of certain testimony where the defendant complained that the witness did not possess sufficient information to testify. The Court of Appeals, at [250 A.2d 303] page 26, 78 A.2d at page 379, expressed the general rule that:

'By 'observation' we mean that direction of attention which is the source of impressions, and thus of knowledge * * * It is sufficient (to allow the witness to testify) if the witness had an opportunity of personal observation and got some impressions from this observation.'

The Court of Appeals seems to have followed this general rule in cases where the question under consideration has been the admissibility of evidence as to speed of an automobile. With respect to the duration of the observation, it has been held that an almost instantaneous observation will...