Broome v. State
| Decision Date | 01 May 1968 |
| Docket Number | No. A--14063,A--14063 |
| Parties | Thomas BROOME, 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 |
Syllabus by the Court
1. Procedure outlined for prosecution of second and subsequent offenders under Title 21, O.S.A. § 51, is not applicable to a previous misdemeanor conviction which forms the base for a felonious prosecution as permitted in Title 47, O.S.A. § 11--902.
2. Title 47, O.S.A. § 11--902, reads: '(c) * * * Any person found guilty of a second or subsequent offense under the provisions of this section shall be deemed guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state penitentiary for a period of time not less than one year and not to exceed five years, and a fine of not more than One Thousand Dollars ($1,000.00).'
3. Title 47, O.S.A. § 11--902 is special legislation. The purpose of which to enhance punishment for second offense of driving a motor vehicle while under the influence of intoxicating liquor (a felony), and to compel obedience to the law when a milder sentence for a misdemeanor had failed.
4. In prosecution of an alleged second offender, under Title 47, O.S.A. § 11--902, the pleading of sufficient historical facts upon which the charge of a prior conviction is predicated constitutes an essential element of the charge, which is necessary to establish jurisdiction in the District Court for trial of the alleged second offense.
5. Where a witness voluntarily states a matter which should not be introduced in evidence and the court promptly excludes the testimony given by the witness and instructs the jury not to consider it in their deliberation, such voluntary testimony of the witness, although improper, will not Ordinarily be ground for reversal.
6. The above rule applies only when an examination of the entire record reveals there has not been a miscarriage of justice; or that there has not been a violation of some constitutional or statutory right of the defendant.
7. Experienced police officers should not, while on the witness stand, make voluntary statements prejudicial to the rights of a defendant on trial.
8. When police officer injects an 'Evidentiary Harpoon' prejudicial to the defendant, and it is evidence from a reading of the entire record that the defendant was prejudiced in the minds of the jury, in that he received the maximum sentence for a crime in which there were no extenuating circumstances, the sentence will be modified by the Court of Criminal Appeals.
Appeal from District Court of Oklahoma County; William L. Fogg, Judge.
Thomas Broome was convicted of the crime of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, After Former Conviction, sentenced to Five Years in the penitentiary, and appeals. Modified to two years in the penitentiary, and affirmed.
Charles D. Reed, Oklahoma City, for plaintiff in error.
G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., Kenneth Nance, Oklahoma City, on the brief, for defendant in error.
Plaintiff in Error, Thomas Broome, was charged in the District Court of Oklahoma County with the crime of Operating A Motor Vehicle While Under the Influence of Intoxicating Liquor, After Former Conviction. He was tried by a jury, found guilty, and his punishment assessed at Five Years in the penitentiary, and a Fine of $10.00. From that judgment and sentence he has appealed to this Court alleging two propositions of error. We will discuss the second allegation of error first, which is the evidence of a prior conviction deprived the defendant of due process of law, citing the case of Harris v. State, Okl.Cr., 369 P.2d 187, with which this writer is very familiar.
Counsel suggests that this Court re-consider the one paragraph of the Harris opinion, supra, which states:
'This decision in no manner precludes inquiry of the witness as to previous conviction for the purpose of effecting his credibility; Neither is it applicable to a previous misdemeanor conviction which forms the base for a felonious prosecution as permitted, for instance, in Title 47, O.S.A. § 93 (47 O.S.1961, § 11--902).
This, of course, is the statute which was amended in 1961 to Title 47, O.S. § 11--902, which was applicable at the time this case was tried, 1 and reads as follows:
This section relating to second offenders is special legislation.
Title 21, O.S.A. § 51, referred to in the Harris case, supra, covering second and subsequent offenses is a general statute, and Inapplicable to offenses under 47 O.S.1961 § 11--902.
This Court stated in Johnson v. State, 96 okl.Cr. 294, 253 P.2d 179:
'In prosecution, under drunken driving statute, of an alleged second offender, the pleading of sufficient historical Facts upon which the charge of a prior conviction is predicated constitutes an essential element of the charge, which is necessary to establish jurisdiction in the District Court for trial of the alleged second offense.' (emphasis ours)
And, further, in Jackson v. State, Okl.Cr., 308 P.2d 323:
'In prosecution for driving motor vehicle while under influence of intoxicating liquor following alleged former conviction of similar charge, proof of previous conviction was necessary to give the District Court jurisdiction.'
This Court is of the opinion that this is the proper rule to be applied, and herein reject any extension of the procedure as outlined in the Harris case, supra, to apply to...
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