State v. Robinson

LE BLANC, Justice.

The defendant, Rube Robinson, was charged by a bill of information filed by the District Attorney for the Parish of. Catahoula with having, on October 9, 1951, negligently killed one Bunion Posey. The homicide resulted from a collision between two trucks,- one of which was being driven by the defendant, on the public highway between Sicily Island and Fowles. Defendant waived a trial by jury and elected to be tried before the District Judge who, after hearing the case, found him guilty and sentenced him to serve three years at hard labor in the State Penitentiary. He now brings this appeal presenting certain bills of exception which were reserved during the course of the trial and which have been perfected.

In the first of his bills of exception defendant complains of the ruling of the District Judge under which a State - Trooper, R. C. McGuffee, was permitted to testify, over objection, as to the speed at which the truck being driven by defendant was traveling at the moment of impact with the other truck. The contention made is that the State Trooper, who it is said arrived at the scene of the accident some forty-five minutes after it happened, testified that there were no skid marks or road marks at the scene, and therefore it is contended there .were no signs or circumstances by which he could determine the speed of the truck.

It appears from the record that the State . Trooper was offered by the State as an expert witness and qualified as such without objection on the part of defendant. In his per curiam the District Judge states that he felt that the witness, from his long experience as a State Trooper, was competent to give expert testimony in this type of work and was able, from all the facts shown by his investigation, to arrive at an estimate of the speed of the truck. The State Trooper who stated that he reached the site of the accident about thirty minutes after it had occurred, testified that from the force of the impact and the distance covered by both trucks after the blow, he estimated the speed of the truck defendant was driving as at forty or forty-five miles per hour. Testimony of that character was admissible as evidence of the speed of the truck at the time of the accident. See Code of Criminal Law & Procedure, LSA-R.S. 15:464; Wharton’s Criminal Evidence, Vol. 2, p. 1777, Sec. 1017, p. 1782, Sec. 1021. See also Blashfield Cyclopedia of Automobile Law and Practice, Vol. 9, Part 2, sections 6233 and 6234. The trial judge properly admitted and gave effect to the testimony of the witness on this point.

Counsel for both defendant and the State have combined the next three bills for the purpose of argument. The first of these relates to questions propounded to the witness, Aubrey Covington, by whom the defendant was employed at the time of the accident. On cross-examination of this witness, testimony was sought to be elicited regarding the past driving experience and ability of the defendant and whether or not he had ever cautioned him about his fast driving. The other two bills have reference to the testimony of two other witnesses, Robert Hardy and Mrs. Roy Zeigler, concerning conversations they had with the witness, Covington, several days after the accident, in the course of which Covington is alleged to have stated to them that he had warned the defendant on several occasions about his fast driving.

On examination we find, with respect to the first of these three bills, that the record is a bit confusing as to whether the objection on which it is predicated was made to the testimony that is now complained of as being hearsay, irrelevant and highly prejudicial. Be that as it may, and not withstanding the fact that the testimony may have been irrelevant, we do not think that it was prejudicial; certainly not to such extent as to warrant setting aside the judgment or granting defendant a new trial. Article 557 of the Code of Criminal Law and Procedure, LSA-R.S. 15:557 provides that “No judgment shall be set aside, or a new trial granted by any appellate court of this state, in any criminal case, on the grounds of * * * or the improper admission or rejection of evidence, * * * unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” The entire record is before us in this case, and we have carefully examined it, and even if it were to be conceded that the testimony objected to was irrelevant we cannot see how its admission was prejudicial to any substantial rights of the defendant.

The other bills, as we have already stated, have to do with the testimony of two witnesses, called by the State on rebuttal, to impeach the testimony of the witness, Covington, who did not distinctly admit making statements to them concerning the defendant’s fast driving. The testimony of the first of these two witnesses was that it was immaterial and hearsay and to that of the second, that it was an indirect attempt to cast a reflection on the defendant under the guise of impeaching one of his witnesses. The district judge in his per curiam to each of these bills states that he admitted the testimony of both witnesses solely for the purpose, of impeaching the testimony of defendant’s employer, Covington, and that he did not consider that it touched upon the defendant’s character in any manner. Under Article 493 of the Code of Criminal Law and Procedure, LSA-R.S. IS :493, the testimony was admissible for the purpose of impeachment.

We note another bill in the record which relates to a State witness named Copeland who was recalled to testify as to the speed of the truck defendant was driving at the time of the collision. The complaint on this bill is that the State was attempting to impeach one of its witnesses under the guise of impeachment of the defendant and that to admit such rebuttal testimony was prejudicial. This bill is not discussed in brief of counsel for defendant and we assume that it has been abandoned. Even were it to be considered, however, we think it has been properly disposed of by the per curiam of the trial judge who states that the testimony was admitted not to impeach another State witness but only in rebuttal of the testimony of the defendant concerning the movements of the truck he was driving..

The last bill of exception has to do with the denial of a motion for a new trial. The motion was based upon the statement of the court to the effect that defendant found himself in a difficult situation due solely to his negligent operation of the truck and that such negligence caused the death of decedent. Counsel for defendant contend that this shows that this case is not one of the gross “disregard of the interest .of others” nor the “gross deviation below the standard of care expected to be maintained by a reasonably careful.man under like .circumstances”, LSA-R.S. 14:12, and they maintain therefore that the application of the law in this case was erroneous. This in our opinion amounts to a plea that the verdict is contrary to the law and the evidence. Under the provisions of the Code of Criminal Procedure, LSA-R.S. 15:516, “Neither the appellate nor supervisory jurisdiction of the Supreme Court can be invoked to review the granting or the refusal to grant a new trial except for error of law.” We find no misapplication of the law, and.finding also that there is no merit in any of the bills of exception presented, it follows that the conviction and sentence ought to be affirmed.

For the reasons stated the judgment is affirmed.

FOURNET, C. J., concurs. McCALEB, J., dissents with written reasons.