(dissenting).
I think that the trial judge committed reversible error in permitting R. C. McGuffee to give his opinion or guess that defendant was driving the truck involved in the accident at a speed of 40 to 45 miles per hour at the moment of the impact with the other truck. I say “opinion” or “guess” because it is conceded that McGuffee did not witness the accident, having arrived on the scen'e not sooner than 30 minutes after-wards. Accordingly, since he did not observe the speed at which defendant’s truck was travelling, his statement was clearly hearsay and could only be received on the theory 'that he was an expert on the speed of motor vehicles qualified, as such, to give reliable evidence grounded on calculations made of skid marks or other matter which came under his observation after the accident: Articles 463, 464, 465 and 466, Code of Criminal' Procedure, LSA-R.S. 15:463, 464, 465 and 466. The trial judge admitted the evidence on that basis and the majority, in- approving his ruling,, state that “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”.
I do not find that the record supports this observation. While McGuffee testified that he had been a State Trooper for 12 years and that he had been schooled in traffic laws and rules of the highways, he gave no evidence with regard to his training and experience in calculating the speed of a moving object which he had not seen in motion. To be specific, the record shows that, when McGuffee was first placed on the stand by the State, he was asked whether he had any special training to qualify him for his position as State Trooper, which he had held for more than 12 years. He responded that he would not say that he-had special training but that he had been given the same schooling and had the same experience as other troopers pertaining to the laws and rules of the highways. He then testified that he reached the accident some 30 minutes after its occurrence and stated the positions in which he found the trucks involved therein and other physical data. Following his cross-examination, he was asked by the district attorney on redirect if he could determine “ * * * the speed of the .seed truck travelling at the point of the impact there?”. Counsel for the defense immediately objected on the .ground that, since the witness was not .present, his statement would be hearsay. The objection was o.verr.uled and McGuffe.e permitted to spec*605ulate that the speed of the truck was 40 or 45 miles per hour.
At no time, during the trial, did the district attorney tender the witness as an expert nor was any attempt made to lay a foundation, as required by law, LSA-R.S. 15:466; State v. Damico, 213 La. 765, 35 So.2d 654, for the admission of evidence as to speed by showing the training and experience, either scientific or otherwise, possessed by the witness. McGuffee says that he bases his opinion on the nature of the impact and the distance both trucks travelled thereafter. Liberally conceding, for the sake of discussion, that this type of opinion might be voiced by one having special knowledge in estimating speed of moving objects from the result of their impact,1 there is nothing here exhibiting that McGuffee had any schooling whatever on the subject, or had made tests, or, indeed, had even witnessed a collision between two moving objects. In its final analysis, the view of the majority is simply that, since McGuffee had been a state trooper for 12 years, he must be qualified. In support of the opinion that testimony of the character given by him is admissible, Blashfield’s Cyclopedia of Law and Practice, Vol. 9, Part 2, Sections 6233 and 6234 are cited.
The statements contained in the citations from Blashfield, relied on by the majority, which deal specifically with personal injury cases, do not sustain the view that a police officer is qualified to give-unobserved estimates of the speed of an automobile, based on conditions obtaining after an accident, as expert evidence. On the contrary, Section 6233 merely provides that the speed of an automobile may, like any other fact, be established by circumstantial evidence and Section 6234 declares that the physical effect of the impact of vehicles is a material circumstance to be considered in determining whether the offending vehicle has been operated at a negligent rate of speed. I have no quarrel with these pronouncements but they are without pertinence to the question of the admissibility of opinion evidence to prove speed.
Albeit, the section of Blashfield, which is appropriate to this case, is Section 6238 of Part 2, Vol. 9, entitled “Nonobservers’ Testimony as to Speed”. A perusal of that section will reveal that it fully supports the contention of defense counsel that, in the *607absence of skid marks or road marks at the scene of the accident, expert testimony as to speed is inadmissible. And it is further stated therein that, in order for witnesses to be qualified as experts of this sort, they “ * * * should also show preliminarily their familiarity with automobiles, their makes, operation, and driving, as well as the time when the witnesses were at the scene of the collision and the extent of the observations made by them.”
The majority also cite Sections 1017 and 1021 of Wharton’s Criminal Evidence, 11th Ed., in approving the admission of Mc-Guffee’s statement anent the unobserved speed of the truck. These sections of Wharton, like the citations from Blashfield, do 'not sustain the opinion. Section 1017 merely sets forth that a witness, who has qualified'as an expert, is subject to the same rules of examination as other witnesses. And Section 1021 declares that the .circumstance that an expert has personal •knowledge of the facts of a case does not disqualify him to testify regarding those facts and that he may also voice his opinion in answer to hypothetical questions.
Being of the view that defendant is entitled to a new trial for the reasons above set forth, it is unnecessary that I express an opinion on the other Bills of Exceptions tendered by defendant.
. The great weight of authority appears to be that, even in civil cases, so-called expert testimony as to the speed of an automobile at the' time- of an accident, based on the appearance or condition of the automobile, after.the accident, is inadmissible upon the ground that the witnesses are not really qualified as experts and that such estimates amount to a mere guess. Oyster v. Dye, 7 Wash.2d 674, 110 P.2d 863, 133 A.L.R. 720; Annotation 133 A.L.R. 726. See also Annotations entitled “Opinion evidence as to speed of automobile or motorcycle” 70 A.L.R. 540 and 94 A.L.R. 1190.