In approaching a decision in this case we fully appreciate the fact that devices such as radar are necessary for efficient law enforcement, but this necessity does not abrogate any of the rules of evidence established by either the common law or statutory law of this Commonwealth. Our court has recognized not only the necessity to carry out tests for accuracy on radar machines before and after they are used, but also the necessity of proving such tests by proper evidence in a subsequent prosecution for speeding. In Royals v. Commonwealth (1957), 198 Va. 883, 96 S.E.2d 816 (the second Royals case), we reversed the conviction of speeding on the ground that the trooper testifying on behalf of the Commonwealth as to the accuracy of the radar machine said that he understood the machine had been properly tested but that he had no firsthand or actual knowledge of the test. In that case we said:
We have previously reviewed convictions for speeding based upon radar checks. See Biesser v. Town of Holland, 208 Va. 167, 156 S.E.2d 792 (1967); Thomas v. City of Norfolk, 207 Va. 12, 147 S.E.2d 727 (1966); Farmer v. Commonwealth, 205 Va. 609, 139 S.E.2d 40 (1964); Crosby v. Commonwealth, 204 Va. 266, 130 S.E.2d 467 (1963); Royals v. Commonwealth, 198 Va. 883, 96 S.E.2d 816 (1957); and Royals v. Commonwealth, 198 Va. 876, 96 S.E.2d 812 (1957). Code Sec. 46.1-198 reads, in part, as follows:
There was in this case no testing of the radar machine for accuracy except by the tuning fork and no evidence of the type or character or method of use of the tuning fork, and no evidence of the accuracy of the tuning fork except the hearsay evidence given by the police officer, objected to and inadmissible. As was said in Royals v. Commonwealth, 198 Va. 883, 884, 96 S.E.2d 816, 817 (the second Royals case), the question of whether the radar had been properly tested for accuracy was "a vital issue in the case." There the evidence for the Commonwealth clearly established, the opinion states, that the radar machine was properly set up and tested before the defendant drove his automobile through its zone of operation, but the judgment of conviction was reversed because of the admission of testimony as to tests hot based on the personal knowledge of the witnesses.
While we do not condone the improper action of the Commonwealth's Attorney in framing and asking the question, we find no reason for holding that defendant was prejudiced thereby. Trout v. Commonwealth, 167 Va. 511, 188 S.E. 219; McLean v. Commonwealth, 186 Va. 398, 43 S.E.2d 45; and Royals v. Commonwealth, 198 Va. 883, 96 S.E.2d 816. The protest against the court's action in overruling defendant's objection to the hereinbefore quoted portion of the Commonwealth Attorney's argument presents a more serious situation.
Thus, there was no evidence upon which to find that the radar device appropriately responded to the tuning forks. Biesser v. Town of Holland, 208 Va. 167, 169, 156 S.E.2d 792, 794 (1967); see also Crosby v. Commonwealth, 204 Va. 266, 268, 130 S.E.2d 467, 468 (1963); Royals v. Commonwealth, 198 Va. 883, 884, 96 S.E.2d 816, 817 (1957). The evidence of the accuracy of the radar device used in this case was, therefore, insufficient.
asures speed in terms of miles per hour. A — State v. Dantonio, 1955, 18 N.J. 570, 115 A.2d 35, 49 A.L.R.2d 460; A — People v. Magri, 1958, 3 N.Y.2d 562, 170 N.Y.S.2d 335, 147 N.E.2d 728; A — United States v. Dreos, 1957, D.C.Md., 156 F. Supp. 200; A — People v. Sachs, 1955, 1 Misc.2d 148, 147 N.Y.S.2d 801; A — City of East Cleveland v. Ferell, Ohio App. 1957, 145 N.E.2d 134; A — People on Inf. of Laibowitz v. Katz, 1954, 205 Misc. 522, 129 N.Y.S.2d 8; A — People on Complaint of Igoe v. Nasella, City Mag. Court, 1956, 3 Misc.2d 418, 155 N.Y.S.2d 463; A — see People v. Duskin, 1958, 11 Misc.2d 945, 174 N.Y.S.2d 527; A — State v. Moffitt, 9 Terry, Del., 210, 100 A.2d 778; Hardaway v. State, Tenn. 1957, 302 S.W.2d 351; Dietze v. State, 1956, 162 Neb. 80, 75 N.W.2d 95; People v. Sarver, 205 Misc. 523, 129 N.Y.S. 2d 9; Peterson v. State, 1957, 163 Neb. 669, 80 N.W.2d 688(4); see State v. Ryan, 1956, 48 Wash.2d 304, 293 P.2d 399; People v. Beamer, 130 Cal.App.2d Supp. 874, 279 P.2d 205; see Royals v. Commonwealth, 198 Va. 883, 96 S.E.2d 816; 49 A.L.R.2d 469, annotation; 33 N.C.L.Rev. 343-355 (1955); 23 Tenn.L. Rev. 784 (1955). We also find reference to other articles as follows: 40 Va.L. Rev. 809 (1955), 38 Marq.L.Rev. 129 (1954); 28 Tul.L.Rev. 400 (1954); 39 Iowa L.Rev. 511 (1954); 30 Wash. L. Rev. 49 (1955).