Bristow v. State

• Decision Date: 04 February 1948
• Docket Number: A-10800.
• Citation: 189 P.2d 629,86 Okla.Crim. 97
• Parties: BRISTOW v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

189 P.2d 629

86 Okla.Crim. 97

BRISTOW v. STATE.

No. A-10800.

Court of Criminal Appeals of Oklahoma

February 4, 1948

Appeal from County Court, Coal County; W. B. Thornsbrough, Judge.

F. E Bristow was convicted of driving an automobile on a public highway while under influence of intoxicating liquor, and he appeals.

Judgment reversed and defendant discharged.

Syllabus by the Court.

1. An information may properly be divided into four parts: (1) The caption; (2) the commencement; (3) the charge; and (4) the conclusion.

2. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label. The charging part of the information must be examined to determine the character of the offense, if any, set forth in the information.

3. Information charging the offense of driving an automobile on the public highway while under the influence of intoxicating liquor is fatally defective which omits the averment that defendant was under the influence of intoxicating liquor.

4. Where the evidence of the state to sustain a conviction is based upon surmise, speculation and suspicion, the conviction will be reversed as not sustained by sufficient evidence.

5. Record examined and evidence held insufficient to sustain conviction for driving automobile on public highway while under the influence of intoxicating liquor.

E Moore, of Coalgate, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Lewis A Wallace, Asst. Atty. Gen., for defendant in error.

JONES Judge.

The defendant, F. E. Bristow, was tried and convicted in the County Court of Coal county on a purported charge of driving an automobile on a public highway while under the influence of intoxicating liquor, and was assessed a fine of $100.

The defendant is entitled to be sustained on two of the propositions presented by the appeal. The demurrer to the information should have been sustained, and the evidence is insufficient to support the conviction.

In the caption to the information, it alleged that the defendant committed the offense of 'Driving an automobile while under the influence of intoxicating liquor', but in the charging part of the information it is alleged: 'That F E. Bristow in the County and State aforesaid, on the day and year aforesaid, did wilfully, wrongfully, knowingly and unlawfully, drive a certain automobile, a 1929 Dodge Sedan, 46 Oklahoma, 65-572, on Highway No. 31, (State Highway No. 31), northeast of the city of Coalgate, Oklahoma, and south of the Caney Bridge on said Highway, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the State.'

In the case of Allen v. State, 63 Okl.Cr. 16, 72 P.2d 516, 519, this Court stated:

'An information is divided into four parts: (1) The caption; (2) the commencement; (3) the charge; and (4) the conclusion. The substantial part of the information is the charging part.

'No information is insufficient by reason of a defect or imperfection in the matter of form, which does not tend to the prejudice of the substantial rights of the defendant on the merits. Section 2892 (22 Okl.St.Ann. § 410).

'The statute dispenses with mere formality and technicality, but the requirement that the information must be direct and certain as it regards the party charged, the offense charged, and the particular circumstances of the offense charged, is imperative. Section 2884 (22 Okl.St.Ann. § 402).'

In Bruning v. State, 63 Okl.Cr. 1, 72 P.2d 393, this Court held, first syllabus: 'The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label, and a wrong name given to the crime in that part of an information is an irregularity only, and not fatal. The charging part of the information must be looked to, to determine the character of the offense.'

In the body of the opinion in said case it is stated:

'It appears that the name given to the crime charged in the information is forgery in the first degree, but by the charging part the defendants are charged with forgery in the second degree.

'A mistake in this particular is an irregularity and is not fatal. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label. Vickers v. U.S., 1 Okl.Cr. 452, 459, 98 P. 467.

'A wrong name given to a crime in the preliminary part of an information is an irregularity only, and is not fatal. The charging part of the information must be looked to, to determine the character of the offense. Kelly v. State, 12 Okl.Cr. 208, 153 P. 1094.'

See also Ex parte Conway, Okl.Cr., 179 P.2d 699.

It would seem when measured in the light of the above authorities that the failure of the information to charge that the defendant was under the influence of...