Booker v. State, A-12407

• Decision Date: 22 May 1957
• Docket Number: No. A-12407,A-12407
• Citation: 312 P.2d 189
• Parties: Loyett Wesley BOOKER, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 189

312 P.2d 189

Loyett Wesley BOOKER, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12407.

Criminal Court of Appeals of Oklahoma.

May 22, 1957.

Syllabus by the Court.

1. The language of the provision of Title 47, Section 93, O.S.A.1955, clearly limits second offenses to those within provision of the act and said act cannot be enlarged by implication or inference.

2. A conviction of driving while drunk in Municipal Court for violation of city ordinance does not constitute a 'former

conviction' as a basis for a subsequent offense prosecution under the provisions of Title 47, Section 93, O.S.A.1955.

3. Evidence of other offenses is not admissible unless they tend to shed light upon the offense for which the defendant is being tried and coming clearly within one of the recognized exceptions to the rule.

4. In prosecution for homicide, if evidence fails to prove any of the element of murder, the trial court should not give an instruction on murder but confine the instruction to the degree of homicide which evidence tends to establish.

Appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.

Plaintiff in error, Loyett Wesley Booker, was charged with the crime of murder, convicted of manslaughter in first degree, sentenced by the court to ten years in the state penitentiary and appeals. Reversed and remanded for a new trial.

Paul Updegraff, Harry G. Foreman, Sylvester Grim, Norman, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

Plaintiff in error, Loyett Wesley Booker, was charged by information in the District Court of Cleveland County with the crime of murder, committed while under the influence of intoxicating liquor after a former conviction of a similar offense. The jury found the defendant guilty of manslaughter in the first degree and left the punishment to the court who sentenced plaintiff in error to ten years in the state penitentiary. The information under which the subject was charged set forth the former conviction as a basis for the second offense and a felony in the following language:

'* * * while he, the said defendant, was then and there under the influence of intoxicating liquor in violation of Title 47, Oklahoma Statutes, Section 93, as amended, said defendant having entered his plea of guilty to the crime of operating a Motor Vehicle While Under the Influence of Intoxicating Liquor and having been thereupon convicted and sentenced for that offense in the Municipal Court of the City of Shawnee, Pottawatomie County, State of Oklahoma, on the 10th day of August, 1953 * * *'

The state based its charge of murder upon Title 21, § 701, paragraph 3, O.S.A.:

'3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.'

The plaintiff in error sets forth three assignments of error:

1. Defendant improperly charged with crime of murder. Conviction of violation of municipal ordinance not conviction for violation of state law. Drunk driving at time of homicide not subsequent offense under provisions of Title 47, Section 93, O.S.A.1955. Trial court erred in overruling defendant's motion for directed verdict.

2. It was error for the trial court to give an instruction concerning murder since there was no evidence tending to show defendant guilty thereof. There being no inclusive offense there can be no included offense. It was therefore error for the court to instruct upon any lesser offense as an included offense.

3. The manner in which defendant was charged made it possible for state to attack defendant's character--to introduce evidence of prior conviction thereby prejudicing the jury and depriving defendant of due process of law and the right to a fair trial, in violation of the provisions of the constitutions of the state and the United States.

We will deal with these questions in the order in which they are presented.

We might preface the discussion of assignment number one with the fact that this court has never passed on this question before. There are no cases directly in point and definitely constitutes a first impression as far as our court is concerned. However, logic and reasoning in the application of the laws is favorable to the defendant. In Title 47, § 93, O.S.A.1955, it is clearly stated that the driving while intoxicated after former conviction constitutes a felony, and under the provision of Title 21, § 701, paragraph 3, O.S.A., Homicide becomes murder when perpetrated while in the commission of any felony. The evidence in the present case shows a death was perpetrated while defendant was driving an automobile under the influence of intoxicating liquor by running over the deceased. The record reflects that evidence was produced at trial for the purpose of substantiating allegations in the information that defendant had been convicted of the prior offense of drunk driving in violation of city ordinance of Shawnee, Oklahoma. Said conviction being in the Municipal Court of that city. The question presented is whether a conviction in Municipal Court for violation of a city ordinance would constitute a basis for prosecution of a felony for second offense of Title 47, O.S.A.1955, § 93. It is to be noted that this provision specifically confines charges to 'any person violating the provision of this Section.' It could not reasonably be construed by this court to mean any other. The language is clear and concise. The statute cannot be enlarged by implication or inference. This court has held in Thorp v. State, 96 Okl.Cr. 135, 250 P.2d 66, that a former conviction in another state would not constitute grounds for second offense. In passing on that question the court said:

'Title 47, § 93, O.S.A.1941, limits second offenses to violation committed under the provision of this Act (the drunk driving statute) and is so restricted as to not include offenses committed in other states.'

If the language in this statute is restricted to violations within the confines of this act as to exclude offenses committed in other jurisdictions, surely it could not be interpreted to include a similar offense in violation of a city ordinance. This state does not recognize convictions for violating a city ordinance as a former conviction as to preclude a prosecution for the same offense in the state court and jeopardy cannot be successfully pleaded as a result thereof. In this connection, it is well to note that the state not only does not recognize a police court conviction...