
    STATE v. CHRISTMAS.
    No. 5011.
    Circuit Court, Dade County, Criminal Appeal.
    February 16, 1961.
    Henry Carr, Miami, for appellant.
    Richard E. Gerstein, State Attorney, Joan Elizabeth Odell, Ass’t. State Attorney, for appellee.
   MARSHALL C. WISEHEART, Circuit Judge.

The appellant was convicted in the court below of reckless driving. The only evidence on which the judgment of conviction rests is the testimony of two persons who arrived upon the scene after an accident, and the police officer who investigated the accident, none of whom were eye witnesses to the events that led to the prosecution of the defendant.

The testimony of the investigating officer reveals that he estimated the speed of the defendant’s vehicle to be 65 miles per hour by the amount of the damage done to the vehicles and the distance traveled from one vehicle to the other. The record also reveals that the defendant’s vehicle was subsequently damaged by falling into a canal on the side of the road immediately after the accident. Since the record is silent as to the speed at which the other vehicle was. traveling when hit, it is. far too inaccurate a measure upon which to base the rate of speed of the defendant’s vehicle. The driver of the struck automobile did not testify; therefore, the record remains silent as to what position on the highway he was in when struck; whether his lights were off or on; whether he was stopped on the highway; or whether, for a lack of evidence to the contrary, he was even backing up.

From the record, the competent evidence proves only that there was an accident, and this fact alone falls far short of proof of the offense of reckless driving for which judgment of conviction was entered.

An appropriate order will be entered to conform to this memorandum opinion.  