Bouyer v. State

• Decision Date: 29 March 1935
• Docket Number: A-8812.
• Citation: 43 P.2d 153,57 Okla.Crim. 22
• Parties: BOUYER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

43 P.2d 153

57 Okla.Crim. 22

BOUYER v. STATE.

No. A-8812.

Court of Criminal Appeals of Oklahoma

March 29, 1935

Syllabus by the Court.

1. In the prosecution for leaving the scene of an accident without giving information, the evidence examined, and held to be sufficient to sustain the verdict, and that no reversible error was committed on the trial.

2. The testimony of officers detailing the steps taken in searching for and arresting the defendant is admissible for the purpose of proving his flight.

3. A witness' testimony may be impeached by showing intoxication at or about the time of the transaction testified to, not only by the evidence of other witnesses but by cross-examination of the witness himself.

4. Evidence is admissible that tends to prove the defendant guilty of the offense charged, even though it may tend to prove a different offense, when both offenses are so closely related or connected as to form a part of the res gestæ.

5. Evidence which is relevant to the issue is not rendered inadmissible by reason of the fact that it tends to prove the defendant guilty of an offense other than the one charged in the information.

6. When a careful examination of the record indicates that the punishment is excessive, this court will modify the judgment and reduce the sentence in the interest of substantial justice.

Appeal from Court of Common Pleas, Oklahoma County; J. T. Dickerson Judge.

A. P Bouyer was convicted of leaving the scene of an accident without giving information, and he appeals.

Judgment modified and, as so modified, affirmed.

W. P Morrison, of Oklahoma City, and John Morrison, of El Reno, for plaintiff in error.

J. Berry King, Atty. Gen., and Smith C Matson and J. H. Lawson, Asst. Attys. Gen., for the State.

DOYLE Judge.

This appeal is from a judgment of conviction of the defendant in the common pleas court of Oklahoma county, for the offense of "leaving the scene of an accident without giving information."

The information charges that on the 5th day of April, 1934, in Oklahoma county, A. P. Bouyer did then and there commit the said offense, specifying: "The said defendant did then and there unlawfully, wilfully and wrongfully while driving and operating a certain 1929 Model Ford Coupe automobile, Oklahoma license No. 302A555-1934, on Highway 66 at 60th and Western, near the Oklahoma Railway underpass, adjacent to Oklahoma City said county and state, and going north on said highway, did strike one A. H. Gray, with the aforesaid automobile and seriously injuring the said A. H. Gray, and then and there failed to stop and give the said A. H. Gray the number of such automobile, the name of the owner and the names of the passengers and the address of each one."

The jury rendered a verdict finding the defendant guilty as charged, but could not agree upon the punishment, thus leaving the same to be fixed by the court.

Motion for new trial was duly filed, and was by the court overruled; thereupon the defendant was sentenced to imprisonment in the county jail for one year, and to pay a fine of $500, and in default of the payment of the fine he be imprisoned in said county jail for a period not exceeding one day for every dollar of said fine and the costs.

The evidence upon which the defendant was convicted is conceded to establish the following facts:

A. H. Gray, on April 5, 1934, at about the hour of 8:30 p. m., was walking along North Western avenue on his way home, at Britton. When he reached a point near the underpass under the Oklahoma Railway, he was struck from the rear by a Ford car. Being rendered unconscious by this blow, he was unable to identify either the car or the driver. The driver, without stopping his car, drove on at a rapid pace, and less than a mile north, turned into Nichols Hills.

B. W. Haynes testified in substance that on the date alleged, about half past 8 o'clock p. m., he was driving towards the underpass going south; that, when about 150 feet north of the underpass, he saw a Ford coupé driven up the road towards him, with only one light, and that, just before coming to the underpass, the Ford car swerved to the left and, passing it, came over so far towards him that it crowded him off the pavement; that this Ford car was driven by a negro. He further testified that, when he passed under the underpass, he saw an object of some kind lying at the side of the road, and he stopped and went back to where he had seen the object, and discovered that it was a man lying on the east side of the road; that he then went back north to a confectionary near the entrance to Nichols Hills, and inquired of some boys there if they had seen a car go by there with one light, and they told him they had.

Earl Veatch testified that on April 5, 1934, about 8:30 in the evening, he was at Sixty-Third and Western, at the City View Confectionary, which is just a little southeast of the entrance to Nichols Hills; that while he was there a colored boy came by in a Ford coupé which had only one headlight burning, and the car turned into Nichols Hills; that he went down to the scene of the accident, and the man that had been hit was lying about a foot from the pavement.

Paul Conray testified that on the 5th of April, in the evening, about 8:30 or 9 o'clock, "a bunch of us boys were standing around 63d street, and a blue 1929 Ford coupé came by there pretty fast. A few minutes after the car passed a man drove up and asked if we had seen a car go by with one light, and we said we had. He said there was a man hit down there by the underpass about a half mile south. We went down there and a few minutes later the police came up and asked for, and we gave them our names."

C. S. Emerick testified that he was driving north on North Western avenue and there was a dark blue car with a tan top ahead of him three or four blocks; that just before reaching the underpass this car swerved across the road, and at that time there was another car coming south; that his car was doing 40 or 45 miles, and the car ahead was going much faster; that he noticed a man lying by the roadside; that he went by about 50 feet before he could stop, then came back and took the man out of the mud; that later he went over to the garage and picked the car out of all the cars there by himself.

W. H. Ridge, county evidence man, testified that he had occasion to go to the scene of an accident near where the Oklahoma Railway underpass is on North Western avenue, and, when asked when he went out there, what he found, answered: "We found the ambulance just leaving, taking the party that had been hit on the head, to the hospital, and we learned from witnesses there, that a man had been struck by a car that didn't stop; it kept on going. We learned it was a Ford coupé, about a '29 model, blue-black in color, with a khaki top on it, and it was driven by a colored man, with one light burning, one light out. We also learned that a colored boy driving that type of car at that time, had turned into Nichols Hills, that he was a colored man that worked for Blackstock. We immediately went to the Blackstock residence and we saw the Ford coupé sitting out off from the house by the side of the road. We examined it. The motor was warm; in fact, I would say it was hot. The right headlight was out."

He was then asked:

"Q. Did you examine the front of the car for any breaks or bends? A. There was a little, but it was pretty hard to describe. The place on the bumper where the little clip fastened the bumper, it had slid over a little, and also a bend in the fender-the right fender, and a kind of curve; not what you would call a square curve like it had been hit or bent, but a round, soft curve in the fender. It appeared to be fresh, and also a little break in the side of the fender. I guess you would call it the rubbed part, or under part of the fender. There was a little break on it, the paint had cracked on it, and it was a fresh break.

Q. Now, did you have any conversation with this defendant about that? A. We did.

Q. All right, tell the court and jury what that was? A. The defendant told us he had been there about an hour and a half, and he denied having any knowledge of the accident, and we learned also that he had come in about 8:30. We also found in the car, two empty whiskey bottles, and one of them had about that much whiskey in it."

Y. V. Burke testified that he was deputy sheriff of Oklahoma county, and was called out to this place where the man had been injured. When he arrived, they had just picked him up and put him on the ambulance carrier. He inquired of Bill Ridge, county evidence man, about what happened, and any information he knew about it; that they found two boys and a Mr. Haynes, who told them what they knew about it, giving answer to the question:

"Q. Then, what did you do, Mr. Burke? A. We learned that A. P. Bouyer, who works for H. L. Blackstock, about two or three weeks previous, had bought a car similar to the description of the car that hit Mr. Gray there at the underpass. We went to Mr. Blackstock's home and found this coupé-'29 model, blueblack, on the west side of Blackstock's home, out in the street. We looked it over and discovered that it had one headlight, the right fender was bent a little, just a kind of dished-out bend. We also noticed on the bumper the clamp had been skidded just a

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