Wilson v. State, 30784

• Decision Date: 10 June 1959
• Docket Number: No. 30784,30784
• Citation: 328 S.W.2d 311,168 Tex.Crim. 439
• Parties: Horace E. WILSON, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 311

328 S.W.2d 311

168 Tex.Crim. 439

Horace E. WILSON, Appellant, v. STATE of Texas, Appellee.

No. 30784.

Court of Criminal Appeals of Texas.

June 10, 1959.

Rehearing Denied Oct. 28, 1959.

Trueheart, McMillan, Russell & Westbrook, Joel W. Westbrook, of counsel, San Antonio, Elbert Jandt, Seguin, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is speeding; the punishment, a fine of $101.

Our able State's Attorney confesses error, and we agree. The applicable portions of his brief which we adopt as the opinion of this Court are as follows:

'The State's testimony reflects that John E. Breslin, Homer Spellman, and A. R. James, Highway Patrolmen of the Texas Department of Public Safety, were working as a team in the operation of a radar unit on U. S. Highway 90, approximately ten miles west of Seguin on the 10th day of May, 1956, that the radar set was placed on a box at a guard post of a culvert, pointing in a westerly direction, that appellant was driving a Cadillac automobile in an easterly direction; it was admitted that when the Cadillac passed the radar unit Patrolman Breslin would testify that the machine read 72 miles an hour, that Patrolman Spellman was approximately one thousand feet down the road from Patrolman Breslin, that after a radio communication between them Spellman saw appellant driving the Cadillac, and stopped him.

'William S. Duncan testified that he was an electronics supervisor for the Texas Department of Public Safety; that he had checked the radar unit in February, 1956, prior to, and in July, 1956, after the time in question, with an audio-oscillator and vacuum tube change core which was calibrated at a known speed; that it checked the same both times, from zero to one hundred miles an hour; that the machine operated on the Doppler effect; that it was ninety-eight per cent accurate under any and all conditions.

'David G. Cadena, a witness called by appellant, testified that he was employed by the Southwest Research Institute in San Antonio in the electronics physics laboratory; that he had degrees from St. Mary's University and the University of Texas; that he had experience in communications in World War II, and had been superintendent in communications for an airline company; that if the radar machine was not set up correctly, it could result in an error of 20%.

'Appellant challenges the sufficiency of the evidence to show the accuracy of radar machines generally. This is a matter of first impression in Texas, but there is no lack of authority in other states.

'The early cases support appellant's contention. In People v. Offermann, 204 Misc. 769, 125 N.Y.S.2d 179 (1953), the conviction was based upon the sole evidence of the radar speedmeter which showed the accused was traveling 41 miles per hour in a 30-mile an hour zone. No expert witness was called to testify to the construction, theory and accuracy of the speedmeter. The trial court stated the results of his own test of the accuracy of the radar speedmeter. The cause was reversed, among other grounds, because no expert testimony was introduced as to the construction, theory and accuracy of the speedmeter, and that the judge had taken into consideration his private knowledge on a subject which 'does not lie within the field of judicial notice under the circumstances of this case as the operation of this device is not a practical application of scientific facts which are known or ought to be known.'

'In People of City of Rochester v. Torpey, 204 Misc. 1023, 128 N.Y.S.2d 864 (1953), the conviction was for speeding; the police officers, who observed the car, testified that they were of the opinion that the speed was 45 miles per hour; the radar speed device showed a reading of 43 miles per hour; that either of these speeds was over the limit. The conviction was affirmed upon the basis of the opinion of the officers, but the court pointed out for a conviction to stand solely on the speed indicator of the radar equipment it would be necessary to establish by expert testimony the accuracy of radar for measuring speed.

'In People of City of Buffalo v. Beck, 205 Misc. 757, 130 N.Y.S.2d 354 (1954), the conviction was reversed because the trial court took judicial notice of the operation and accuracy of radar to establish speed of automobiles.

'The recent cases hold that expert testimony is not necessary to show the construction, theory and accuracy of the radar device as a class of scientific instruments.

'State v. Dantonio, 18 N.J. 570, 115 A. 2d 35 (1955), a conviction for speeding, was affirmed. Dr. John M. Kopper, a recognized expert, testified for the prosecution; the defense offered expert testimony to show that the graph of the tacograph on the bus showed that it was traveling 5 miles per hour less than the radar speedmeter showed. The court held that the accuracy of the device was for the trier of facts and that such expert testimony as to the operation and construction of the radar unit would not be necessary in the future.

'In People v. Magri, 3 N.Y.2d 562, 170 N.Y.S.2d 335, 147 N.E.2d 728 (1958), the court took judicial notice of radar units as a class of scientific instruments when no expert testimony was offered.

'City of East Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958), is in accord with the recent decisions that readings of a radar speedmeter may be accepted in evidence without the necessity of offering expert testimony as to the scientific principles underlying them. The wellreasoned opinion contains a concise statement as to the operation of radar units as follows:

"The radar speed-detecting devices commonly used in traffic control operate on what is known as the Doppler effect and utilize a continuous beam of microwaves sent out at a fixed frequency. The operation depends upon the physical law that when such waves are intercepted by a moving object the frequency changes in such a ratio to the speed of the intercepted object that, by measuring the change of frequency, the speed may be determined. See The Scientific Reliability of Radar Speedmeters, by Dr. John M. Kopper, 33 North Carolina Law Review, 343.

"The Doppler effect, which has been used for over a century in determining the speed of stars and for over a decade in measuring the speed of airplanes and their height above the ground, has been experienced by probably every motorist when driving past a car whose horn is being sounded. The pitch or frequency of the sound falls suddenly just as the vehicle is passed.

"In operation, the radar device, which, according to 1 Underhill's Criminal Evidence (5 Ed.), 280, Section 154, is now used in 43 states, the District of Columbia and Hawaii, is set up along the side of a road or street, usually in or upon a parked police car, with the beam being played along the highway. When a moving vehicle crosses that beam, the speed of the vehicle is registered on a graph or calibrated dial on the meter device. The speed, if it is excessive, is then transmitted by radio by the officer reading the graph or dial, along with a description of the vehicle, to another officer stationed some distance farther on, and the vehicle is intercepted by this officer.'

'The court quotes Professor Wigmore in The Science of Judicial Proof at page 450, as follows:

"* * * since the additions made possible to our unaided senses are due to the use of instruments constructed on knowledge of scientific laws, it is plain that the correctness of the data thus obtainable must...