Tyus v. State, 6 Div. 431

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: 347 So.2d 1377
• Parties: Edward TYUS v. STATE.
• Decision Date: 19 April 1977
• Docket Number: 6 Div. 431

Page 1377

347 So.2d 1377 Edward TYUS
v.
STATE. 6 Div. 431. Court of Criminal Appeals of Alabama. April 19, 1977.
Rehearing Denied May 24, 1977.

Page 1378

John W. Cooper, Cooper & Huey, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.

BOWEN, Judge.

On April 9, 1976, the appellant was arrested and charged with operating an overweight truck in violation of Title 36, § 89, Code of Alabama 1940, as amended by Act No. 922, 1975 Legislative Session, passed September 18, 1975. The appellant entered a plea of not guilty and the case was tried and evidence heard in the County Court of Jefferson County on August 5, 1976. The appellant was found guilty and fined one hundred dollars.

Page 1379

Notice of appeal was given to the Circuit Court of Jefferson County. The case was submitted to the circuit court on November 8, 1976. No testimony was taken and the facts were stipulated by both parties. On viewing the case de novo, the circuit court found the appellant guilty on November 10, 1976. The appellant filed a "motion to alter or amend a judgment or in the alternative, for a new trial". On November 23, 1976, the opinion and findings of the court were amended.

Notice of appeal was given to the Alabama Supreme Court which properly directed the filing of the appeal in this court under Rule 3(c), Alabama Rules of Appellate Procedure.

Upon the initial review of the record by this court, there was some question as to the exact facts to which stipulation was had in the court below. Therefore under the provisions of Rule 10(f) ARAP, the Court of Criminal Appeals directed that a supplemental record be certified and transmitted to this court containing any written stipulation of facts which was had between the parties or, if no such written factual stipulation existed, for the trial court to make a determination of which facts were stipulated by the parties including, but not limited to, the fact of whether the defendant was operating a truck-tractor with a loaded dump trailer as opposed to a trailer-tractor rig at the time of his arrest in this cause.

In compliance with this request, the circuit court found that:

"The parties agreed to the facts as stated in the Judgment Entry of this Court's proceedings as reflected in the original November 8, 1976 Decree. That the parties have bound themselves to the vehicle description as a matter of fact and law as a thirty-four foot, five axle tractor-trailer and said vehicle description is the finding upon which the Appellant-defendant was found guilty and duly sentenced. That the record is complete as to the parties stipulations in this cause." (Emphasis ours)

The judgment entry of November 8, as referred to above, recites that:

"This case came on to be heard on stipulation and oral and written argument.

The Defendant, Edward E. Tyus, is charged with having an overweight truck. His truck weighed 80,000 pounds.

The State contends that, according to the Alabama statute, the maximum weight of a 34 foot, five axle truck is 77,000 (70,000 lbs. plus an allowable 10% tolerance is 77,000 lbs.) and anything over that amount is a violation of the law. The Defendant argues that the maximum, allowable rate is 80,608 pounds."

Thus the stipulated facts as to the description of the truck, as determined by the trial court, are that Edward E. Tyus operated a thirty-four foot, five axle tractor-trailer truck weighing 80,000 pounds. In reaching this determination, the trial judge noted the fact that prior to the submission of the cause, the appellant's attorney "mentioned" the alleged fact that a "loaded dump trailer" was involved in a letter from that attorney to the court. Actually mention of this assertion was made in two letters by the appellant's attorney prior to the original judgment entry.

After the supplemental record was filed in the Court of Criminal Appeals, the attorney for the appellant filed a sworn affidavit with this court in which he asserts that the stipulation involved a five axle, thirty-four foot tractor with dump trailer having a gross weight of 80,000 pounds. He concludes with the statement that, "As God is my witness, this case was heard on a stipulation before Judge Nice that the vehicle involved was a dump trailer".

Rule 10(f), ARAP provides for the correction or modification of the record on appeal. This subdivision replaces the provisions of former Supreme Court Rule 18 governing certiorari to perfect a record on appeal.

It provides, in pertinent part, as follows:

"If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth." (Emphasis ours)

Page 1380

Additionally, Rule 10(d), ARAP, if properly and timely invoked, would have allowed the appellant to prepare a statement of the evidence and submit it to the trial court for settlement and approval.

The appellant has the duty of checking his record before submitting his appeal, Hopkins v. State, 51 Ala.App. 510, 286 So.2d 920 (1973); it is his burden to file a correct record. Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959). An ex parte affidavit of the type submitted here cannot be considered as part of the record upon which the reviewing court must base its decision. Lewis v. State, 42 Ala.App. 166, 157 So.2d 38 (1963); Butler v. State, 285 Ala. 387, 232 So.2d 631, cert. dismissed, 406 U.S. 939, 92 S.Ct. 1807, 32 L.Ed.2d 140 (1970); Williams v. State, 52 Ala.App. 207, 290 So.2d 668, cert. denied, 292 Ala. 758, 290 So.2d 672 (1973); White v. State, 41 Ala.App. 112, 126 So.2d 495, cert. denied, 271 Ala. 702, 126 So.2d 496 (1961). An appellate court is bound by the record and such record may not be impeached by affidavits, or otherwise, by matters outside the record. Colburn v. State, 40 Ala.App. 248, 112 So.2d 800, cert. denied, 269 Ala. 694, 112 So.2d 804 (1959). Thus we are bound by the stipulations of fact as found and determined by the trial judge. While the fatality of this decision to the arguments of the defendant on appeal will become manifest in the course of this opinion, we have been given no alternative.

With the disposition of the factual issue, the sole question before this court is whether a thirty-four foot, five axle tractor-trailer truck with a gross weight of 80,000 pounds may lawfully operate on an interstate highway in Alabama. The pertinent statute is Title 36, Section 89, Code of Alabama 1940, as amended by Act No. 922 of the 1975 legislative session. All references to Section 89 in this opinion will be to that section as amended by Act No. 922 unless otherwise designated.

Under subsection (d)(3) of § 89, the total maximum weight for a five axle, thirty-four foot tractor-trailer rig is 70,000 pounds. For purposes of enforcement, subsection (d)(4) of § 89 provides that all scaled weights shall be deemed to have a margin of error of ten percent (10%) of the true gross weight. This means that, in the situation at bar, the measuring scales could have indicated a total of 77,000 pounds (70,000 plus 10% (7,000) = 77,000) before the appellant would have incurred criminal liability for an overweight truck. However the appellant's truck, by stipulation, weighed 80,000 pounds. This was a clear and definite violation of § 89(d)(3).

In defense and as justification for this violation the appellant alleges that § 89 provides two exceptions to the above weight limitation. Those alleged exceptions are:

(1) That his truck, a tractor with a loaded dump trailer, was within the special class of vehicles exempt from the axle distance weight requirements of § 89(d)(3) by virtue of § 89(d)(5);

and

(2) that his truck comes within the "grandfather clause" of § 89(d)(3) which, under the appellant's interpretation, would allow him to operate at a maximum of 80,608 pounds.

This court finds neither of these arguments persuasive or controlling for the reasons set out below. In finding these two inapplicable and the appellant in violation of the overweight truck law, the trial court held and decreed that:

(1) That Section...