Bowden v. State, A-11320

• Decision Date: 16 July 1952
• Docket Number: No. A-11320,A-11320
• Citation: 95 Okla.Crim. 382,246 P.2d 427
• Parties: BOWDEN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 427

246 P.2d 427

95 Okla.Crim. 382

BOWDEN v. STATE.

No. A-11320.

Criminal Court of Appeals of Oklahoma.

July 16, 1952.

Syllabus by the Court.

1. Where there is a conflict in the evidence from which different inferences may be drawn it is the exclusive province of the jury to weigh the evidence and determine the facts.

2. Whether accused voluntarily furnished samples of blood and urine for analysis is a preliminary question for trial court.

3. In a drunk driving case where blood and urine tests are consented to voluntarily, the alcoholic content of both an accused's blood and his urine was a matter not within the ordinary training or intelligence of the average juror, hence not only the facts, but the conclusions in relation thereto, were matters of professional or scientific knowledge or skill, concerning which qualified experts are permitted to give testimony.

Harry Seaton, Tulsa, Okl., for plaintiff in error.

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

BRETT, Presiding Judge

Plaintiff in error Alva Franklin Bowden, defendant below, was charged by information in the district court of Tulsa county, Oklahoma, with the commission of the crime of first degree manslaughter allegedly committed on January 14, 1949 at about 1:30 P. M., in Tulsa county, Oklahoma. The information charges in substance that the defendant, while under the influence of intoxicating liquor, drove on a public highway, Title 47, § 93, O.S.A.1941, an International trailer motor truck head-on into and against a 1940 Packard 2-door sedan, occupied by Eunice Kellogg as a passenger, inflicting upon her certain mortal wounds from which she died. The defendant was tried by a jury, convicted, and which jury fixed his punishment at 20 years in the penitentiary, upon which judgment and sentence was entered accordingly, and from which this appeal was perfected, on April 17, 1951. Brief on behalf of the state was filed herein on February 28, 1952, completing the issues herein.

The evidence on behalf of the state amply supports the charge that the defendant was driving while under the influence of intoxicating liquor. Mr. Clyde Greever the defendant's employer, Mattie Highfill, Leonard Bates, E. A. Cummings, State Highway Patrolman, Brick Fowler, Investigator for the County Attorney's office, K. O. Herwig, Instructor in the Oklahoma School of Business, all of whom saw and observed the defendant either at the time of the accident or within a short time thereafter, testified that the defendant was drunk. They testified that they based this conclusion upon his face being flushed, that he staggered when he walked, that he had difficulty in lighting his cigarette, that his speech was slow and thick, and that they smelled intoxicating liquor on his breath; otherwise the witnesses testified strongly and positively to the effect defendant was drunk, exclusive of evidence in relation to blood and urine tests to determine alcoholic blood content, hereinafter referred to as made by Dr. Beddo. Mr. W. H. Windsor was at the collision and said the defendant was drunk and that the truck was still running after the collision and he reached in and turned off the truck ignition, and there was a strong odor of liquor in the truck cab. The truck driver was still in the cab at the time. He got out however and left the scene but was overtaken by the officers as he was running across a field in a drunken dog trot, unable to keep his footing falling down a time or two.

However, there is a conflict in the record in the testimony of some of the state's witnesses relative to whether they could small intoxicating liquor on the defendant's breath. This conflict is further amplified by the fact that some of the defendant's witnesses said they could not smell any intoxicating liquor on the defendant's breath. Mr. Greever, Investigator Brick Fowler and Mattie Highfill said the defendant was chewing tobacco. Mr. Greever said, it was 'running down his face'. Leonard Bates said he was chewing gun and unwrapping more gum and chewing it. Dr. Beddo's testimony is to the effect that the tobacco and sugar contained in the gum completely obscures the odor of alcohol and gives a distinctive odor to the breath. Most of the witnesses who testified for the defendant said that he was not drunk and had no smell of intoxicating liquor upon his breath, but they were persons who saw him some considerable time after the collision, some of whom did not see him such as the two jailers until he was placed in jail. Hence the discrepancy in the testimony relative to being able to smell intoxicating liquor on the defendant's breath may be accounted for, in the difference in the acuteness of the sense of smell in persons, combined with the fact that the defendant was doing what was designed to destroy the evidence of the alcoholic odor of his breath.

In this connection, it is well to observe that the record shows the defendant got back from a trip about 2:00 or 3:00 P. M. Friday and didn't work any more that week. The defendant had Mr. Greever's truck, supposedly at his house. Bowden called Mr. Greever about 12:30 P. M. on Saturday the day of the collision and said he was going hunting. Mr. Greever informed him to bring the truck over to the yard, he didn't want the truck on a hunting trip. Of course the defendant, if drinking intoxicating liquor, wanted to obscure his alcoholic breath from his employer, hence he was prepared so to do, with both his chewing tobacco and his purposely possessed chewing gum. It is apparent that this conduct indicates the defendant knew what he was doing. These facts certainly weaken the defendant's testimony that he was the victim of an epileptic black-out and didn't know what he was doing.

As hereinbefore indicated the defendant's defense we that he was suffering an epileptic seizure or black-out, and that he was not drunk. He did admit that he had gone to the grocery that morning and bought some 'pork and beans and maybe some beer'. He testified he blacked out before the collision, and did not recall anything until he came to in the hospital about the middle of February. It appears he was taken there because of a highly nervous state and irrational condition. One jailer, John Sherill, testified that in his opinion the defendant was not drunk, but there was something wrong with him. Another jailer John H. Whitaker, testified the defendant fell on his head about two weeks before trial or the middle of April in the jail, and was unable to perform his duties for several days. His lawyers testified to his inability to recognize them or to exercise the responsibilities of a client. A nurse testified he was in the hospital for 13 days after his imprisonment. He testified not clearly but at length as to his past history of epileptic black-outs.

Members of defendant's family and other witnesses testified as to his seizures and drinking. Garland Bowden, a brother of defendant, testified he never did see the defendant have a black-out, but he was told about them. Joella Fay Bowden, the defendant's 19-year old daughter, said she had seen her father have 3 or 4 black-outs at home. She told of one incident when he laid his paper down, put his hands to his head and began to shake all over, and went to the bed and laid down. She said she had seen her father under the influence of intoxicating liquor, also, but denied he had been drinking the day in question. Mrs. Maudie Bowden, defendant's wife, testified she had seen her husband under the influence of intoxicating liquor, but said he was not drinking the day in question. When asked if the defendant was not a pretty heavy drinker she answered, 'I have seen him drink occasionally'. She said he had been under the influence of intoxicating liquor a number of times since August 28, 1948. She testified she had seen him black-out, that at such times he put his hands to his head, and said his head hurt...