Bearden v. State, A--14051

Citation1967 OK CR 133,430 P.2d 844
Decision Date26 July 1967
Docket NumberNo. A--14051,A--14051
PartiesArthur BEARDEN, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court

1. Title 47, O.S.A., § 11--902(a) provides that: It is unlawful and punishable by law, for any person who is under the influence of intoxicating liquor to drive, operate,

or be in an actual physical control of any motor vehicle within this State.

2. Actual physical control, as used in Title 47, O.S.A., § 11--902(a), means: Existing or present bodily restraint, directing influence, domination or regulation of any automobile, while under the influence of intoxicating liquor.

3. Defendant, who was lying unconscious at the side of the road, outside his vehicle; cannot be said to have existing or present bodily restraint, directing influence, domination or regulation of an automobile, while under the influence of intoxicating liquor; and cannot be said to be in 'actual physical control'; and, therefore, could not commit an offense within the provisions of the statute. Title 47, O.S.A., § 11--902(a).

4. It is not only the province but the duty of the Court of Criminal Appeals to set aside a verdict when it is contrary to law and the evidence, or where there is no evidence to support it, or there is a failure to prove some essential matter to establish the offense charged.

Appeal from the County Court of Caddo County, Dewey E. Hodges, Judge.

Arthur Bearden was convicted of the offense of intentionally, wilfully, and unlawfully driving, operating, and being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, and appeals. Reversed, with instructions to dismiss.

Wilhite & Buzbee, Anadarko, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Penn Lerblance, Asst. Atty. Gen., for defendant in error.

NIX, Presiding Judge.

Plaintiff in Error, Arthur Bearden, hereinafter referred to as defendant, was charged by information in the County Court of Caddo County, Oklahoma with the offense of 'intentionally, wilfully, and unlawfully driving, operating and being in actual physical control of a motor vehicle while under the influence of intoxicating liquor'. He was tried by a jury, found guilty, and sentenced to pay a fine of $300.00, and 30 days in the County Jail. From that judgment and sentence he has appealed to this Court alleging numerous assignments of error.

It will not be necessary for this Court to go into each and every one of the allegations, and we will only discuss the first proposition of error--that the trial court erred in refusing to give defendants Requested Instruction No. 1--that it constitutes prejudicial error for there was no competent evidence that the defendant either drove, operated, or was in actual physical control of the pickup involved.

The record reveals that witness for the state, Wade Hilton, received two calls with respect to the accident; that it was approximately 45 minutes after he received the first call before he reached the scene of the accident. This witness notified Eddie Mackey, Acting City Marshal at Binger, Oklahoma, with respect to the call and that Mackey reached the scene of the accident prior to the time that Hilton did. When Hilton reached the scene of the accident, he saw the pickup hanging partially off the shoulder of the road with the end of it in the bar ditch. This witness further testified:

'Q. All right. Now did you see that pickup move at all until you moved it?

A. The pickup was in exact the same place when I got there until I hooked on to it to move it.

Q. You didn't see it move?

A. I didn't see it move. (Emphasis ours.)

Q. You saw no one operate it or drive it, did you?

A. Outside of Mr. Bearden open the door, getting in and out, that's all that I seen the pickup anything happen.

Q. Well it wasn't, opening the door and getting in with the assistance of Mr. Mackey, or insistence or whatever it was, that wouldn't move the pickup, would it?

A. No, he wasn't, the pickup wasn't in operation. (Emphasis ours.)'

Acting City Marshal Eddie Mackey testified, as follows:

'Q. What did you observe when you reached the scene of the accident, if anything?

A. Do you mean what did I see?

Q. Yes.

A. The person involved was outside the pickup laying down on the ground. I walked up to him and shook him and at first he didn't move and then I asked him if he was hurt and he said no. So he got up and I put him back into the pickup. (Emphasis ours.)'

On cross-examination Mackey testified that he was not sure but it was approximately thirty minutes after he received the call from Mr. Hilton with respect to the accident before he reached the scene. He testified further:

'Q. Now you never saw Mr. Bearden in this truck until you picked him up and put him back in there did you?

A. No, sir.

Q. And when you got there no one was in charge of that truck, was they?

A. No, sir. (Emphasis ours.)

Q. I'll ask you if it isn't true that after you put him in the truck he tried to get out and you refused to let him out?

A. Well, no, he was trying to get out in the highway and I thought that it would be safer for him in the pickup than it would be out in the highway.

Q. You wouldn't let him out of the truck after you picked him up and put him back in there would you?

A. Will, I don't believe, I forced him to stay in it if that's what you mean.

Q. Well, you prevented him from getting out didn't you?

A. Well, you might say that, yes.

Q. All right. I'm not going to say anything because I wasn't there, but do you say that that's true? You prevented him from getting--you picked him up off the ground, put him in the pickup truck?

A. Yes, sir.

Q. And then when he wanted to get out you prevented him from doing it, is that right?

A. I told him that it would be better if he stayed in the pickup.

Q. Well just now you said that it might be that way if you prevented him. Did you prevent him from getting out?

A. Yes, sir. Yes, sir.

Q. All right. That's all I'm trying to find out. When you put him back in that pickup, did you remove the keys from the pickup?

A. No, sir, I did not.

Q. But you never saw that pickup move that afternoon or night, did you?

A. You mean, what do you mean, see it move?

Q. Drive up the highway or travel on the highway?

A. No, sir.

Q. It was standing still when you got there? (Emphasis ours.)

A. Yes, sir.

Q. No one was in it until you picked up Mr. Bearden and put him in it?

A. That's right.' (Emphasis ours.)

The third and last witness for the state was Trooper Filmore Edgmon, who testified that he arrived at the scene of the accident at 11:25 P.M., and observed the pickup on the South side of the road in the bar ditch. He further stated:

'Q. Fil, a while ago you used the word 'the truck traveled' or was traveling, I think you said, 165 feet...

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10 cases
  • In re Revisions to Uniform Jury Instructions
    • United States
    • Oklahoma Supreme Court
    • July 28, 2005
    ...but was not arrested until approximately one month later. Section 756 uses the word "operate," but in light of Bearden v. State, 1967 OK CR 133, 430 P.2d 844 (Okl.Cr.1967), and Parker v. State, 1967 OK CR 7, 424 P.2d 997 (Okl.Cr.1967), indicating that "drive" and "operate" are synonymous, t......
  • In re Adoption of 2012 Revisions to Okla. Uniform Jury Instructions–Criminal (Second Edition)
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 7, 2012
    ...language “drive, operate,” the Court of Criminal Appeals has indicated that “drive” and “operate” are synonymous. Bearden v. State,1967 OK CR 133, 430 P.2d 844(Okl.Cr.1967);Parker v. State,1967 OK CR 7, 424 P.2d 997(Okl.Cr.1967). It should be emphasized again, however, that the words “actua......
  • In re Adoption of the 2003 Revisions to the Ouji
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • July 3, 2003
    ...the language "drive, operate," the Court of Criminal Appeals has indicated that "drive" and "operate" are synonymous. Bearden v. State, 430 P.2d 844 (Okl. Cr. 1967); Parker v. State, 424 P.2d 997 (Okl. Cr. It should be emphasized again, however, that the words "actual physical control" are ......
  • State v. Smelter
    • United States
    • Washington Court of Appeals
    • January 11, 1984
    ...46.61.504, which specifically prohibits conviction of a defendant who has moved his vehicle safely off the roadway. In Bearden v. State, 430 P.2d 844, 845-47 (Okl.Cr.1967), the court found no actual physical control where the defendant was found lying unconscious at the side of the road, ou......
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