State v. MolinarState v. Molinar
- Reporters:
- , , , ,
- Before:
- Jacobs
Lead Opinion
The defendant, convicted in a trial to the jury on a charge of speeding in violation of
The jury could reasonably have found from the evidence the following facts: On June 28, 1961, at about 12:30 a.m., the defendant was traveling in a northerly direction on High Ridge Road, a public highway in Stamford. High Ridge Road is a four-lane highway, with two lanes in each direction. The traffic was light, the road was dry, the weather was clear, and the area was lighted. The defendant was operating a 1960 Ford Thunderbird which she had purchased in May, 1961. It was equipped with
We first consider the ruling of the trial court in excluding a question designed to elicit the opinion of the police officer as to whether or not the speed at which the defendant was traveling during the course of the clock was unreasonable under all the circumstances. It is conceded that the police officer is an expert on the subject of speed of motor vehicles. “The rule is well established that the opinion of experts cannot be received in evidence where the subject-matter of inquiry may be presumed to lie within the common experience of all men of ordinary knowledge. . . . If the facts can be placed before a jury and are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as the witnesses, the opinions of experts cannot be received. The fact that the expert witness may know more of the subject and better comprehend and appreciate it than the jury is not sufficient to warrant the introduction of his testimony.” Rogers, Expert Testimony (3d Ed.) pp. 50, 51. “The fact that the [expert] witness may have been more skilled and experienced than the jurors does not of itself justify expert testimony. Nor will expert testimony be permitted on the ultimate facts to be
The defendant also assigns as error the court‘s refusal to permit her to examine the arrest sheet
A further assignment of error is the court‘s refusal to grant a new trial on a claim of newly discovered evidence. It is alleged that the summons which had been issued to the defendant stated that she was operating her motor vehicle at sixty miles an hour; the original summons indicated she had been driving between sixty and sixty-five miles an hour. The summons was given to the defendant at the time of her arrest. It was in her possession at all times throughout the trial. The defendant by her own testimony conceded she was traveling at fifty-five miles an hour. “The granting of new trials for newly-discovered evidence will be allowed only where it is clear that the case does not run counter to our established rules. One of these is that the new evidence must be `sufficient to turn the cause in favor of the applicant.‘” Apter v. Jordan, 94 Conn. 139, 141. “Newly-discovered evidence which is merely cumulative, or which impeaches the reputation or credibility of a witness, will not suffice ordinarily to grant a new trial, and never unless it appears reasonably certain that injustice has been done in the judgment rendered, and that the result of a new trial will probably be different.” Id., 143. “[A]nd upon such an application the court compares the old testimony with the new and decides, in the exercise of a sound discretion, whether injustice has probably been done, and whether the newly discovered evidence is likely to change the result.” Levine v. Union & New Haven Trust Co., 127 Conn. 435, 440. We cannot say upon this record that the discretion of the court was abused. See Kliarsky v. Eastern Greyhound Lines, Inc., 116 Conn. 649, 651.
We next consider the assignment of error that the evidence did not warrant a conviction of speeding. “The degree of excess of speed over the posted limit is an important factor to be considered by the trier in determining whether, under all the circumstances, a motor vehicle has been operated at a speed greater than was reasonable.” State v. Gordon, 144 Conn. 399, 402. The defendant conceded that she was operating her automobile at least fifteen miles an hour in excess of the posted limit. She was clocked at a speed of between twenty and twenty-five miles an hour in excess of the posted limit. “It is an open question for the trier to decide whether, in any given case, the speed is actually unreasonable under all the circumstances.” Ibid. “Its answer involved weighing conflicting evidence and passing upon the credibility of witnesses and testimony, and it [whether the speed was unreasonable or not] was thus brought distinctly and peculiarly within the jury‘s province.” Radwick v. Goldstein, 90 Conn. 701, 706. There is nothing to indicate a prejudice on the part of the jury or improper influence
There is no error.
In this opinion KINMONTH, J., concurred.
Dissenting Opinion
I am in full agreement with the majority on all aspects of this case except in regard to the rulings on evidence.
On cross-examination, the defendant asked the arresting officer the following question: “Officer, would you in your opinion say that the rate of speed that Miss Molinar was operating this automobile on the night in question, taking into consideration the weather, the use of the highway at the time, traffic conditions, was unreasonable?” To this question, the prosecutor objected without stating the grounds of his objection. The court then sustained the objection. The defendant stated the ground on which she claimed that the officer‘s opinion was admissible. Casalo v. Claro, 147 Conn. 625, 629; Practice Book § 155. The question for consideration is whether the court erred in refusing to allow the opinion of a police officer as to whether the defendant was operating her car at an unreasonable speed. The defendant contends that the police officer was qualified as an expert, and the trial court found that the police officer was qualified as an expert as to speed. The witness, Officer McGuiness, had been a member of the Stamford police department for ten and one-half years, during nine and one-half years of which time he was assigned to radio patrol duty. He had made other arrests in Connecticut for speeding. He had testified as to the weather conditions, traffic, posted speed limits and the condition of the road in
Even if we were to consider the officer as a non-expert witness, he could testify as to reasonableness of speed under all the conditions, provided his opinion was founded on his own personal observation and not on the testimony of others, nor on any hypothetical statement of facts. Stephanofsky v. Hill, 136 Conn. 379, 382. In Connecticut, nonexpert witnesses, using the test in the Stephanofsky case, have testified to the sufficiency of a dam; Porter v. Pequonnoc Mfg. Co., 17 Conn. 249, 257; whether a bridge was dangerous; Ryan v. Bristol, 63 Conn. 26, 37; and whether a sidewalk was in a safe condition for travel. Campbell v. New Haven, 78 Conn. 394, 395. In Dean v. Sharon, 72 Conn. 667, 674, an expert witness was allowed to testify as to whether a highway was reasonably safe. Certainly Officer McGuiness could testify as to reasonableness of the accused‘s speed in view of his opportunity to observe and his own experience. Failure to admit such testimony was in error.
The gist of the crime of speeding in violation of
For the foregoing reasons, I feel that there is error and that the judgment ought to be set aside and a new trial o