Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. F. EMMET MORRISSEY, Judge, presiding. Judgment
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing September 16, 1965.
Defendants were convicted and fined $1,890 for operating a truck which weighed 18,980 pounds in excess of the prescribed statutory maximum of 72,000 pounds. The fine was computed on the basis of the method provided by statute, and the computation is not disputed.
Defendants contend that the evidence does not prove them guilty beyond a reasonable doubt, in that the accuracy of the scales was not proved and the method employed by the state trooper to weigh the vehicle axle by axle was speculative and produced an inaccurate result.
Section 132 of the Illinois Motor Vehicle Act (Ill. Rev Stats 1963, c 95 1/2, § 229) provides that:
"(a) Any police officer having reason to believe that the weight of a vehicle and load is unlawful shall require the driver to stop and submit to a weighing of the same either by means of a portable or stationary scales. If such scales are not available at the place where such vehicle is stopped, the police officer shall require that such vehicle be driven to the nearest public scales.
"(b) Whenever an officer upon weighing a vehicle and load, as above provided, determines that the weight is unlawful, such officer shall require the driver to stop the vehicle in a suitable place and remain standing until such portion of the load is removed as may be necessary to reduce the gross weight of such vehicle to such limit as permitted under this Act and shall forthwith arrest the driver. All material so unloaded shall be cared for by the owner or operator of such vehicle at the risk of such owner or operator."
Section 229 (c) provides that a driver who fails to comply with the provisions of the section shall be guilty of a misdeameanor.
On May 21, 1963, at about 7:26 a.m., at 135th Street and Crawford Avenue in Crestwood, Illinois, State Highway Police Officer Richard Haines observed a five axle combination Mack vehicle, which appeared to be overweight. Haines had been on the police force for seven years and had weighed hundreds of vehicles. He halted the truck and asked the driver, defendant John Fair, an employee of defendant C.J. Serio, a corporation, to give him the net weight of the vehicle. Fair replied that he did not know the weight and at the officer's request, Fair followed him to the Stolz Material Yard Scale at 149th Street and Crawford Avenue in Midlothian.
Haines testified that the Stolz Material Yard scale was a tested and certified scale, that it was tested by the Department of Agriculture of the State of Illinois, and that a decalcomania pasted on the scale indicated that the last inspection date was February 1963, some three and one-half months before the instant weighing. Haines' judgment on weights is not disputed. He verified the operability of the scale by releasing its lock and observing that the needle rose to zero.
The vehicle in question was a five axle, semidump truck and, being too long for the 10' x 20' scale, three separate measurements were taken, as the truck was weighed axle by axle. The front or steering axle under the cab of the truck was driven to the middle of the scale. The weight registered was 8,380 pounds. The drive or center tandem axle (actually two axles less than 72", but more than 40" apart) was next driven on the scale, so that the front or steering axle was weighed simultaneously with the drive or center tandem axle. The combined weight on the drive or center tandem axle was 42,400 pounds (50,780 less 8,380). For the third weighing, the front or steering axle and the drive or center tandem axle left the scale platform completely, as did about half of the trailer portion of the vehicle. The rear tandem axle (actually two axles less than 72", but more than 40" apart) moved to the center of the scale. The weight on the rear tandem axle was 40,200 pounds. Observing that the total weight on each axle was 90,980 pounds (8,380 plus 42,400 plus 40,200), some 18,980 pounds in excess of the statutory maximum, Officer Haines gave Fair an arrest ticket and told him he could not drive the truck on the highways until its weight had been reduced to 72,000 pounds.
Haines further testified that after each weighing, the scale needle was returned and locked at zero, that Fair was invited to observe the weight shown on the scale after each weighing, that there was no shifting of the load of clay and topsoil during the weighing and that the ground and scale were level.
Fair testified that the weight of the Mack vehicle alone was 31,000 pounds, that on the day in question, the vehicle contained about five buckets of topsoil and clay, plus some water, and that no crown or peak extended above the vehicle's trailer walls.
Gus Bongi, field supervisor of Bongi Cartage Company, lessee of the Mack vehicle at the time of the alleged violation, testified there was no peak and that each bucket weighed about 6,000 pounds. He said that before each cartage job, the company conducted experiments to find the average weight of a bucket of the material to be carted, but did not weigh each truckload individually. On this particular job, he estimated that a bucket of clay and topsoil weighed about 6,000 pounds, and testified that five buckets were put in each truck. The ...