Britt v. State, A-12157

• Decision Date: 08 June 1955
• Docket Number: No. A-12157,A-12157
• Parties: Donald BRITT, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 441

285 P.2d 441

Donald BRITT, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12157.

Criminal Court of Appeals of Oklahoma.

June 8, 1955.

Syllabus by the Court.

1. It is error in a misdemeanor case for the trial court, over the objection of the defendant, to permit a witness whose name has not been indorsed on the information, to testify in chief for the state. But the court in exercise of its discretion may permit the indorsement of the name of the witness by the state upon the information where it appears that, without plan or design on the part of the state, the name was accidentally omitted, or that the state had not learned the name of the witness until after the trial was begun, or in any case where it appears that the state has used due diligence in procuring the name of the witness and having it indorsed upon the information.

2. The trial court in the exercise of judicial discretion may permit the name of a witness to be indorsed upon the information even after the trial has commenced. If defendant's counsel is surprised at such action and such indorsement of an additional witness requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial and should file a motion for a postponement or a continuance in which he should set out the facts constituting such surprise, and the other evidence, if any, he could produce to rebut the testimony of such additional witness it the trial of the case was continued. Where he fails to do this the error, if any, is waived.

Appeal from the County Court of Seminole County; Hubert Hargrave, Judge.

The plaintiff in error, Donald Britt, defendant below, was convicted for the offense of driving an automobile on a public highway while under the influence of intoxicating liquor; fined $250.00, and he appeals. Affirmed.

Charles E. Grounds and M. W. Janes, Seminole, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Plaintiff in Error, Donald Britt, defendant below, was charged by Information, in the County Court of Seminole County, with the offense of driving an automobile on a public highway while under the influence of intoxicating liquor, in violation of 47 O.S.1951 § 93. The offense was allegedly committed on or about May 10, 1954, on Public Highway No. 99, at a point approximately two miles north in the City of Seminole, Oklahoma, in said County and State. The defendant was tried by a jury, convicted, his punishment fixed at $250; judgment and sentence was entered accordingly, from which this appeal has been perfected.

The sufficiency of the State's evidence is not in issue on this appeal, but we deem it advisable to summarize it, on the point of intoxication and driving. The record conclusively establishes that the defendant was driving the automobile in question. Moreover, it shows the defendant was thick of tongue, and staggering drunk. In fact, the sworn testimony establishes he was very drunk. The defendant left the scene of the offense, to which he was returned by a Highway Patrolman, and there voluntarily submitted to an Intoximeter Test. This test established the defendant had 44% of alcoholic blood stream content. It has been scientifically established that .05% alcohol blood content by weight makes the average person delighted and devilish, .15% makes him dizzy and delirious, .20% to .30% makes him dazed and dejected, .30% to. 40%, dead drunk and .50%, dead. Toms v. State, 95 Okl.Cr. 60, 239 P.2d 812. It thus appears that the defendant was only .06% alcoholic blood stream content away from death. In Toms v. State it was held such tests are admissible along with other evidence, to be accorded such weight as the jury might think the result of such a test is worth. On the record, it thus conclusively appears not only the defendant was driving on a public highway, but that he was almost dead drunk.

The defendant seeks to escape the penalty imposed herein, on the technical ground that, the trial court erred in granting the State permission to indorse two additional witnesses on the Information at the time of trial. The defendant relies on the provisions of 22 O.S.1951 § 303, applicable to charges brought by Information, as follows:

'* * * He shall also indorse thereon the names of such other witnesses as may afterwards become known to him, at such time as the court may by rule prescribe. All information shall be verified by the oath of the prosecuting attorney, complainant or some other person. R.L.1910, § 5694.'

He also relies on the case of Harding v. State, 95 Okl.Cr. 8, 238 P.2d 376, 377, holding as follows, to-wit:

"It is reversible error in a misdemeanor case for the trial court, over the objection of the defendant, to permit a witness whose name has not been indorsed on the information, to testify in chief for the state. But the court in the exercise of its discretion may permit the indorsement of the name of the witness by the state upon the information where it...