Carter v. State

• Decision Date: 14 November 1962
• Docket Number: No. A-13143,A-13143
• Citation: 376 P.2d 351
• Parties: John W. CARTER, 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 351

376 P.2d 351

John W. CARTER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13143.

Court of Criminal Appeals of Oklahoma

Nov. 14, 1962.

Syllabus by the Court.

1. In a criminal prosecution, any legal evidence from which the jury may adduce guilt or innocence is admissible if, when taken with other evidence in the case, its relevancy appears, and the rejection of competent testimony offered by defendant constitutes prejudicial error.

2. Where the defendant's plea and defense is under the provisions of the statute, to the effect that the defendant was not conscious of the act complained of, the testimony of qualified doctors and psychologists touching on the subject may be material and relevant, depending upon the factual predicate laid in each case. 21 O.S.1951, § 152, subsection 6.

3. A practicing psychologist who had considerable training and experience in analyzing motivation for human conduct should be classified as an expert upon mental behavioral patterns as affects personal conduct.

4. Where no objection is taken to the instructions of the trial court, such instructions will not be examined by the Court of Criminal Appeals for the purpose of discovering other than fundamental error.

5. Weight and credibility of opinion of expert witness is question for determination by jury.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

John W. Carter was convicted of the crime of manslaughter in the first degree, and appeals. Reversed and remanded with directions.

Chris Rhodes (Public Defender), Tulsa. for plaintiff in error.

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

BRETT, Judge.

The plaintiff in error, John W. Carter, defendant below, was charged by information in the district court of Tulsa County, Oklahoma with the crime of first degree manslaughter, allegedly committed on March 28, 1960, at about 11:45 a. m. in said county and state. It was charged that the accused drove his automobile on the left-hand side of the highway into the front end of a tractor and pole-trailer loaded with pipe and weighing 24000 pounds, whereby the defendant's mother, a passenger in the front seat of defendant's automobile, sustained injuries from which she died as the result of the collision.

It was further alleged that the defendant was feloniously operating his automobile at the time of the collision under the influence of intoxicating liquor (47 O.S.1951 § 93), and while so engaged he crossed over the center median in a no-passing zone (47 O.S.1951 § 121.4) into the path of the oncoming heavily loaded truck.

The case was tried to a jury, the defendant convicted, and his punishment was fixed at four years in the penitentiary. Judgment and sentence was entered accordingly, from which this appeal has been perfected.

The facts in support of this conviction, offered by the state, were as will be briefly hereinafter set forth.

It appears that the mother of the defendant, Lucy Lena Carter, obtained a permanent wave in the beauty shop of Mrs. Jerry Lee Vantrease, in Sand Springs, Tulsa County, Oklahoma, on March 28, 1960. The operation was concluded between 11:30 and 12 o'clock noon. During this time the defendant appeared at the beauty shop, ostensibly to take his mother home.

Mrs. Vantrease testified that when the defendant came into the shop he was redfaced, didn't look well, and staggered, but that she was not close enough to him to smell his breath. She further testified that he asked her for a drink of water and followed her into the kitchen to get it. He offered Mrs. Vantrease a drink of gin, which she declined, and he then took a drink himself from a partially filled bottle, which he put back under his belt. Mrs. Vantrease said she thought the defendant was under the influence of alcohol, and was a little drunk. She testified that shortly after the defendant and his mother left, the collision occurred about half a mile east of her home. She testified that she went to the scene of the accident and the defendant's car was on the left side of the road, headed east, the direction defendant was travelling when he left her home. (On cross examination of this witness, defense counsel brought out that on the day and at the time in question, defendant was, in her opinion, too drunk to operate his automobile.)

On re-direct examination this witness testified that defendant's speech was like that of a man who had been drinking, and it was her opinion that he was drunk.

The truck driver, Roley Lee Dill, testified that the collision between defendant's car and his truck occurred just east and outside the city limits of Sand Springs on the date in question. He related he was travelling west on the right-hand side of the road, and the defendant was travelling east on the Wekiwa Road headed towards Tulsa. Suddenly the defendant swerved to the left as though turning into a driveway, then switched straight up the road towards the pipe-loaded truck, with the resulting terrific head-on collision, resulting in Mrs. Carter's death.

The testimony of the officers who investigated the crime was that the defendant had the bottle of gin in his belt and a strong alcoholic breath when he was found in the wreckage with his mother.

The weather, the officers and other testified, was a dry, 'sunshiny' day. The record shows the defendant was driving at about 40 miles an hour in a no-passing zone, when the collision occurred.

Both the defendant and his mother were unconscious when removed from the wreckage. Mrs. Carter was practically scalped, sustained severe head injuries, injuries to her chest, and both legs were broken, and she was pronounced dead on arrival at the hospital.

This is substantially the evidence upon which the state convicted the defendant.

The defendant testified in his own behalf to the effect that in the year 1959 he was in an auto-train collision in which he sustained, among other injuries, a severe head injury. For such injuries it appears he was treated at the veterans' hospital in Muskogee, Oklahoma, during a period of several months and by several doctors, among whom was Dr. Mark Adams.

The court sustained an objection to an attempt to establish dizzy spells as a result of that injury; and also sustained an objection to questions relative to defendant being confined in the State Hospital at Vinita subsequent to the March 28, 1960 collision, such objection being sustained on the ground of immateriality.

The defendant testified on both direct and cross examination that he had no recollection of the alleged drinking episode, and the collision that followed. He only faintly remembered that he had arranged for Mrs. Vantrease to fix his mother's hair, but he recalled nothing subsequent thereto.

The defendant then offered Dr. Mark Adams, staff physician at the Veterans' Hospital in Muskogee, Oklahoma. He was qualified as an expert in physical medicine, and rehabilitation. He testified that he treated the defendant John Carter in the Veterans' Hospital from September 14, 1959 to February 10, 1960. He did not treat him for his injuries received in the truck collision of March 28, 1960, though defendant was in the Veterans' Hospital for awhile thereafter. Objection was made to the doctor testifying, and the introduction of hospital records, concerning defendant's head injury, for which he was treated before March 28, 1960, and as to any causal connection between that injury and the collision resulting in his mother's death. The objection was sustained.

It is apparent that an attempt was being made to establish a condition of blackout at the time of the collision of March 28, 1960. The trial court permitted a tender by Mr. Rhodes, the public defender, of evidence and medical conclusions by Dr. Adams, if he were permitted to testify. The proffered testimony, in substance and condensed as far as proper presentment of the question will permit, was as follows:

That if Mark Adams, duly qualified and practicing doctor at the Veterans' Administration Hospital were called to testify, he would testify in substance that the defendant had been a patient of his in the hospital as the result of injuries sustained when the defendant was in an auto-train collision in which his car was struck by a train, while he was crossing the railroad intersection, that he was thrown from his car, his clothing hooked by the train and Carter was dragged by the train several hundred yards before the train was stopped. As a result thereof tests, x-rays and examinations revealed the defendant to have sustained cerebral concussion, severe, due to a subarachnoid hemorrhage due to trauma. The defendant was observed and further examined until February 10, 1960; that as a result of that examination and observation he was found to have a large and continued gap of memory for events during September and October and was unable to relate any of the details of the accident which had occurred in September. That defendant suffered loss of equilibrium, impairment of judgment, and spells of dizziness, which related directly to the cerebral concussion sustained in the September 13 auto-train collision. That defendant at the time of the accident in September, 1959 was 32 years of age, and had a prior history of being in good health.

It then appears that if the trial court had permitted Dr. Adams to be hypothetically questioned with an assumption of the foregoing facts and the additional facts that on March 28, 1960 this subject was involved in a head-on auto-truck accident, which occurred when defendant was driving his car and had made an apparent attempt to turn left into a private driveway and at the last minute turned back to the right, running head on into the opposite bound tractor trailer loaded with pipe. Assuming all of those facts to be true, based on reasonable medical certainty and from a medical and clinical point of view as to whether there might...