Spokane v. Knight, 96 Wash. 403, 165 Pac. 105 (1917).


                SPOKANE v. KNIGHT.                     403
 May 1917          Opinion Per MOUNT, J.

      [No. 13809. Department Two. May 18, 1917.]
THE CITY OF SPOKANE, Respondent, v. J. M. KNIGHT,
                     Appellant. 1

CRIMINAL LAW - VENUE - PROOF. In a prosecution for the
violation of an ordinance of the city of S., the venue is
sufficiently proved by evidence that defendant was in "the
city" and upon certain main streets all of which were in
the city, although there was no direct statement that he was
in the city of S.

MUNICIPAL CORPORATIONS - STREETS - USE - VIOLATION OF SPEED

LIMIT - EVIDENCE - SUFFICIENCY. A conviction of exceeding the
city speed limit is sustained by the testimony of an officer
as to excessive speed registered by a regularly tested speedometer
on his motorcycle, notwithstanding evidence that speedometers
are not accurate and get out of order, and the defendant's
testimony that his speedometer registered less than the speed
limit.

EVIDENCE - JUDICIAL NOTICE - CITY ORDINANCES. In a prosecution
instituted in the police court fear the violation of a municipal
ordinance, pleaded by number and title, and appealed to the
superior court both courts were required to take judicial notice
of the ordinance.

TRIAL - MISCONDUCT OF JUDGE - COMMENT ON EVIDENCE. It is not
an unlawful comment on the evidence for the court, in overruling a
motion to strike certain evidence, to give reasons by means of an
illustration which merely indicated that the testimony objected to
was not conclusive but was evidence of the fact sought to be proved.

Appeal from a judgment of the superior court for
Spokane county, Easterday, J., entered May 20, 1916, upon
a trial and conviction of violating a city ordinance.
Affirmed.

Carl W. Swanson, for appellant.

J. M. Geraghty, Alex M. Winston, and Arthur L. Hooper,
for respondent.

MOUNT

MOUNT, J. - The appellant was convicted upon a charge
of exceeding the speed limit in the city of Spokane, in
violation of ordinance No. C1832 of that city. He was tried


1 Reported in 165 Pac. 105.

 404    SPOKANE v. KNIGHT.
                Opinion Per MOUNT, J.           96 Wash.

upon the charge, first, in the police court of that city, and
was convicted and sentenced to pay a fine of ten dollars and
costs. He appealed from that judgment to the superior
court of Spokane county, and, after a mistrial, was again
convicted and sentenced to pay a fine of ten dollars and costs.
Upon this appeal, he makes several contentions, which will be
noticed in their order.

It is first contended that the venue was not sufficiently
proved, by reason of the fact that no witness testified that
appellant traveled with his automobile at a speed faster than
twenty miles per hour in the city of Spokane. It is true no
witness made the direct statement that, at the time appellant
was driving his automobile, he was in the city of Spokane, but
a number of witnesses testified that he was in "the city" and
upon certain streets, naming them, all of which are city
streets of the city of Spokane. This court has held in a
number of cases that venue, like any other fact, may be
found upon circumstantial evidence. State v. Fetterly,
88 Wash. 599, 74 Pac. 810; State v. Gilluly,
50 Wash. 1, 96
Pac. 512; State v. Kincaid, 69 Wash. 273, 124 Pac. 684;
State v. Chin Sam, 76 Wash. 612, 136 Pac. 1146; State v.
Dooley, 82 Wash. 488, 144 Pac. 654; State v. Libby,
89 Wash. 27, 158 Pac. 1058, 155 Pac. 746.

In State v. Kincaid, supra, we said:

"There was no direct statement by any witness that the
crime was committed in Whatcom county. The rule, however,
is established by overwhelming authority that venue,
like any other fact, may be found upon circumstantial
evidence; and that, where it may be reasonably inferred from
the evidence that the crime was committed in the county
signaled in the information, the venue is sufficiently
established."

From the record in this case, it may not be reasonably
inferred that the crime was committed in any other place than
in the city of Spokane. The witnesses all assumed that the
act was committed within the city of Spokane, and there
can be no doubt upon that question.

                SPOKANE v. KNIGHT.                    405
 May 1917          Opinion Per MOUNT, J.

Appellant next argues that the evidence is insufficient to
sustain the verdict, because it does not show that the
appellant operated his automobile more than twenty miles per
hour. An officer of the city testified, in substance, that he
took the speed of the appellant by means of a motorcycle,
to which was attached a tested speedometer. That he took
appellant's speed from Garfield street to Sherman street, a
distance of more than a thousand feet, maintaining an equal
speed at a constant distance ole about fifty feet behind the
appellant, and that his speedometer registered thirty miles
an hour. That, between two other streets, upon the same
occasion, he took his speed, and that the speedometer on his
motorcycle registered twenty-seven miles per hour. This
same witness testified that his speedometer had been tested
as often as three times a week and was found to be correct.
The appellant testified that he had a speedometer on his
automobile, which, he testified, was correct, and which showed
that he was traveling at less than twenty miles per hour.
There was some evidence that speedometers are not
accurate and get out of order, and it is armed by the appellant
that the officer's speedometer may have been out of order
and did not register the speed correctly, but that was a
question for the jury. Speedometers, like other machines,
may get out of order, but where they are tested regularly,
they may be relied upon with reasonable certainty to
determine accurately the rate of speed at which a machine is
driven. It cannot be said, therefore, that because
speedometers may be out of order, rates of speed may not be
measured by instruments manufactured for that purpose, and
which usually give approximately correct rates of speed.
The question was one for the jury.

Appellant next argues that the court erred in taking
judicial notice of the ordinance. The ordinance was pleaded
in the information by number and title. The case was
brought in the municipal court in the city of Spokane.

 406    SPOKANE v. KNIGHT.
                Opinion Per MOUNT, J.           96 Wash.

That court was required to take notice of the ordinance,
and the superior court, being a court of appellate jurisdiction
in this particular case, was also required to take notice
of the ordinance. Seattle v. Pearson,
15 Wash. 575, 46
Pac. 1058; Spokane v. Griffith, 49 Wash. 293, 95 Pac. 84.

It is next argued that the court erred in commenting
upon the facts. After the evidence relating to speed and
the speedometer had been introduced, appellant made a
motion to strike this evidence, and, after an argument thereon
in the presence of the jury, the court said:

"If I want to take something and put it on scales down
here, and the scales indicated a certain weight, I would say
that that was the weight. Now, of course, I do not verify
that. I simply say by the scales. The scales are not always
right we know. We know that scales are not always made
with accuracy, and some scales arc more accurate than
others. I will deny the motion."

It is contended by the appellant that this was a comment
upon the evidence. The court, when it made this
statement, was giving a reason for denying the motion. It was
not intending to say that the speedometer was accurate,
but was comparing speedometers with weighing scales, as
an illustration of the court's holding upon the question of the
admissibility of the evidence relating to speed as measured
by the speedometer. What the court meant here is evident,
and that is, that the weight of an article, as shown by scales,
is evidence of the fact of weight, and that, as applied to
this case, the rate of speed measured by the speedometer is
evidence of that fact. It is not conclusive, but sufficient to
go to the jury. We think the statement made was not such
a comment upon the facts as would warrant a reversal of the
case, even though made in the presence of the jury. The
court was not instructing the jury at the time the
statement was made. It was simply giving counsel its views
upon the question, which had been argued by counsel for
both appellant and respondent.

                HARTLEY v. LASATER.                    407
 May 1917                   Syllabus.

We find no error in the record. The judgment is,
therefore, affirmed.

ELLIS, C.J., FULLERTON, PARKER, and HOLCOMB, JJ.,
concur.