# State v. Bosch

> Montana Supreme Court · March 21, 1952 · 125 Mont. 566

URL: https://www.frixlaw.com/law-library/cases/9550950

## Case

- **Full name:** STATE, Respondent, v. BOSCH, Appellant
- **Court:** Montana Supreme Court
- **Decided:** March 21, 1952
- **Citations:** 125 Mont. 566; 242 P.2d 477; 242 P.2d 977; 1952 Mont. LEXIS 109
- **Precedential status:** Published
- **Opinion:** Dissent by Freebourn
- **Judges:** Bottomly, Adair, Angstman, Freebourn, Metcalf
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9550950

## Opinion text

MR. JUSTICE FREEBOURN
(dissenting):
I believe defendant is entitled to a new trial for two reasons.
The first is in permitting, over objection, of a so-called bill of particulars to go to the jury. The bill of particulars was not evidence. It constituted a statement of what the prosecution believed the facts to be and what its proof would be. It was a highly prejudicial statement covering three pages of transcript and must have had a telling effect upon the jury.
The second reason is that neither Hall, an automobile mechanic, nor state patrolman Benson was qualified to state to the jury the speed at which the defendant’s car was traveling at the time of the accident.
Hall was in his bedroom, some seventy-five yards from the scene of the accident, when he heard a “terrific squeal of brakes that sounded like a car sliding. ’ ’ He was allowed to testify the car was traveling over 60 miles an hour. Benson was allowed to say the car was traveling 72 miles an hour. The accident occurred in darkness and neither witness observed the car traveling before the accident. Their conclusions were pure guesswork and conjecture.
No showing was made as to the condition of the tires or brakes.
What was said by this court in State v. Bast, 116 Mont. 329 , 151 Pac. (2d) 1009, 1013 , well applies here. There we said: “As before stated, Patrolman Blake did not witness the happening *592 of the accident for at the time it occurred he was at his home in Kalispell some 10 or more miles distant and he certainly did not qualify to testify with any degree of accuracy as to the miles per hour the ear was traveling some forty or fifty minutes before he came into the picture. Such guesswork, speculation and conjecture cannot be said to rise to the dignity of evidence on which to sustain a conviction of the serious crime here charged. ’ ’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9550950. Public record. Not legal advice.