
    The People of the State of New York, Respondent, v. Robert E. Truax, Appellant.
    County Court, Niagara County,
    February 21, 1957.
    
      
      William H. Earl for respondent.
    
      James Degnan for appellant.
   Frank J. Kronenberg, J.

Defendant was convicted in Justice’s Court of speeding in violation of subdivision 1 of section 56 of the Vehicle and Traffic Law.

He appealed, alleging that the evidence was insufficient to show that he was the driver of the automobile and to show that there was undue speed.

As to the first ground of appeal, a supplemental return has been filed which this court, in the interests of justice, accepts under section 758 of the Code of Criminal Procedure. The return as supplemented shows that defendant admitted that he was driving the automobile.

As to the second ground of appeal, the evidence shows that the automobile appeared to have veered off the left side of the highway, breaking off six concrete posts and rolled over twice during its progress in traveling 344 feet and eventually came to rest against a tree. This circumstantial evidence was sufficient to warrant a finding by the trier of facts that the automobile was proceeding at an unsafe speed. That physical evidence distinguished this case from such ones as. People v. Burkhalder (203 Misc. 532) and People v. Furber (5 Misc 2d 614). The Furber case contains an illuminating discussion by Judge Tabor as to when direct evidence of the rate of speed is necessary.

The judgment is affirmed.  