Appeal from the Circuit Court of Ogle County, Fifteenth
Judicial Circuit; the Hon. WILLIAM B. PHILLIPS, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The defendant, Frank Barbic, was found guilty of driving 62 miles per hour in a posted speed zone of 50 miles per hour, in violation of section 49 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 95 1/2, par 146), and was assessed a fine of $12, plus costs of the suit. The trial was before the magistrate, without a jury. Upon appeal, the defendant prays for reversal of the judgment, or that the cause be remanded for new trial.
The defendant based his defense on a chart or graph made by a Tachograph machine or device, with which his tractor unit was equipped. The Tachograph recorded chronologically the speed and miles per hour, at any given time in direct relationship to the time of day together with other data, independently of any act of the defendant, other than the operation of the tractor.
The theory of the defendant is that the State did not prove him guilty beyond a reasonable doubt; that the radar unit which registered the speed of the tractor was subject to error inherent in its structure and operation, and to error of judgment of its operator; and that the Tachograph chart was not contradicted.
The People's theory is that the radar equipment used by the arresting officer was proven to have been tested both before and after the offense; that it was working accurately; that the court had the right to take judicial notice of the accuracy of the radar equipment as used to determine the speed of moving vehicles; that the court, as the trier of fact, had the right to determine, from all of the evidence, the facts with reference to the offense charged and the validity of the defense thereto; and that the defendant's guilt was established beyond a reasonable doubt.
The People called four witnesses: Corporal Fred Fromm, who has been on the Illinois State Police Force for 17 years, and had operated radar devices for about 10 or 11 years; Corporal Fred Spilman, who had served 10 years and had worked with radar over the entire period; Trooper Jay O. Buckley, who struck the tuning fork on a block of wood while standing directly in front of the control head of the radar device; and Elmer Eyman, Technical Supervisor of the State Radio Bureau, who prepared applications for radar equipment to be purchased, and set up all radar testing procedures.
The following is a fair narrative statement of the testimony of the State Police Officers: Fromm had received complete instructions in radar when it was first used in his State Police District, and further instructions when any change or improvement was made in the equipment. He was operating the device at the time and place in question. The tripod with the radar control was located along the paved portion of the highway, with a cable running to his squad car, which was 70 to 80 feet from the road, and the radar machine and the recording graph were in the front seat of his car. The radar device was set up, warmed up for 10 to 20 minutes, and was then tested and found to be accurate at 8:30; 9:18; 9:45 and 11:30 a.m., and at 12:15 p.m. All tests were made with a tuning fork, set for a speed of 65 m.p.h., and the radar device tested out perfectly at all times on the day in question. Fromm knew of no weak points or possibilities of error in the device. The possible percentage of error in the radar testing was less than one percent.
A Schwerman tractor and trailer (herein called Truck No. 1) of grayish color, traveling southerly, passed through the radar wave or beam at 9:00 a.m., when no other vehicles were within such beam. It was traveling 62 m.p.h. when picked up by the radar beam and its speed dropped to 58 m.p.h. as it went out of the beam. Two other Schwerman trucks were following Truck No. 1 and the nearest was 20 to 30 seconds behind it. Corporal Fromm radioed Corporal Spilman that Truck No. 1 registered 62 m.p.h. on the radar. Corporal Spilman, who was operating a catch-car, stopped Truck No. 1 and issued an arrest ticket to the defendant its driver for speeding as indicated on the radar graph. Corporal Spilman was within the view of Corporal Fromm at all times after the radio call and when the arrest was made. Spilman then radioed back to Fromm that he had stopped Truck No. 1, informed the defendant of the violation, and had issued a ticket to him.
The radar graph for the date in question, was admitted in evidence. It reflected the speed of the various vehicles which passed through the radar beam, with legends in the hand of Corporal Fromm, indicating the graph marking pertaining to Truck No. 1 which came through the radar beam at 9:00 a.m. It also reflected the tests made at 8:30 and 9:18 a.m.
At the time of the arrest, the defendant stated that he did not believe he was traveling 62 m.p.h., and that a Tachograph on Truck No. 1 did not indicate that speed.
Corporal Spilman recalled seeing the two trucks which were following Truck No. 1, and he had enough time to pull onto the road between the time when Truck No. 1 went out of the radar beam and the first following truck reached the beam, which indicates that there was no traffic proceeding northerly on the highway at the time.
Elmer Eyman testified relative to proper testing procedures, and those he outlined conformed to those used on the date in question. He stated that the tuning fork test, after a five-minute warm-up of the radar device, had a possibility of error of less than one percent. He completely described the operation of the radar unit and explained the phenomenon of the measurement of speed by radar. Included in his explanation was a statement that when a larger vehicle (a truck) goes through the radar beam, it returns more energy to the radar machine and the recording of the speed of such vehicle will be in the nature of a plateau on the radar graph; while a smaller vehicle (a car) will return less energy and will register a peak on the graph.
The radar graph reflected plateaus for the trucks and peaks for the cars, and it did not indicate that any cars were traveling north or south immediately before or after, or at the time when the trucks crossed the radar beam.
The defendant testified that he had worked for Schwerman Trucking Company for seven years, and that all of the trucks that he had driven were equipped with Tachographs which registered the work time of the various drivers, the miles traveled, and the stops made. He stated that the standard procedure was to open the tractor doors and attach the Tachograph machine on the dash to the right of the steering wheel, insert an unused chart ...