Chandler v. State

• Decision Date: 01 March 1944
• Docket Number: A-10181.
• Citation: 146 P.2d 598,79 Okla.Crim. 323
• Parties: CHANDLER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

146 P.2d 598

79 Okla.Crim. 323

CHANDLER v. STATE.

No. A-10181.

Court of Criminal Appeals of Oklahoma

March 1, 1944

Syllabus by the Court.

1. Oklahoma Statutes Annotated, 1941, Title 47, section 92, is known as the reckless driving statute. It does not set a maximum rate of speed, but provides: "Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead."

2. The above statute has application, not only to stationary objects and those traveling in the same direction, but may apply to vehicles traveling in opposite directions.

3. It is provided by Title 69 O.S.A.1941 § 583 that: "Vehicles in meeting each other shall keep to the right of the center of the road."

4. Where one is charged with manslaughter in the first degree as provided by Title 21 O.S.A.1941 § 711, where the facts justify, it is proper for the court to instruct the jury upon the issue of manslaughter in the second degree, as provided in Title 21 O.S.A.1941 § 716, as an included offense.

5. Culpable or criminal negligence has often been defined by this Court as "the omission to do something which a reasonable or prudent person would do, or the doing of something which such person would not do under the circumstances surrounding the particular case."

6. It is generally recognized that to commit one a criminal, there should be a higher degree of negligence than is required to establish civil liability; the rule in civil liability being based upon the "preponderance of the evidence," while in criminal cases one must be convicted "beyond a reasonable doubt."

7. It has been universally held that a person may be found guilty of criminal homicide arising from the negligent operation of an automobile or its use for an unlawful purpose, or in violation of law, but it is uniformly held that it must be shown that such negligent operation, or use for an unlawful purpose or in violation of law, was the direct and proximate cause of the death; that is, that there was a causal connection between the act and the death.

8. While the question of proximate cause is generally a question for the jury, in a criminal case the evidence should be such as to justify the finding that one was guilty of "culpable" or "criminal" negligence where one is convicted of manslaughter in the second degree.

9. Record examined and found that defendant was driving his automobile upon the proper side of the highway; that the automobile operated by husband of deceased, and in which she was riding, was upon the wrong side of the highway, and that by reason of the facts in the instant case, this was the direct and proximate cause of the collision.

10. A case will not be reversed because of error in an instruction where no exception was taken thereto, unless the error is fundamental and deprived the defendant of a substantial right.

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

Thomas Charlie Chandler was convicted of manslaughter in the second degree, and he appeals.

Reversed and remanded.

Laynie W. Harrod, of Oklahoma City, for plaintiff in error.

Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for defendant in error.

BAREFOOT Judge.

Defendant Thomas Charlie Chandler, was charged in the District Court of Oklahoma County, with the crime of manslaughter in the first degree, was tried and convicted of manslaughter in the second degree as an included offense, and his punishment assessed at confinement in the State penitentiary for a term of two years; and he has appealed.

For a proper consideration of this case, it is necessary to first detail a concise statement of the facts.

The charging part of the information was as follows:

"On the 9th day of February, A. D. 1941, in Oklahoma County, State of Oklahoma, Thomas Charlie Chandler *** did then and there wilfully, unlawfully and feloniously commit the crime of manslaughter in the first degree, that is to say, that said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully, negligently, wrongfully, and feloniously, drive a certain automobile, to-wit: a 1941 Ford Tudor sedan automobile, bearing Oklahoma 1940 license number 1-63404, upon a public highway, to-wit: On north and south county highway, one mile east of Arcadia, in said county and state, and did then and there drive said above described automobile north upon said highway in a culpable and negligent manner, and at a high and dangerous rate of speed, and at a speed that was greater than was reasonable and proper under the circumstances, and conditions, then and there existing on to said highway, and without due regard to the traffic, surface and width of the said highway, and said defendant did then and there drive as above described at a speed that was greater than would permit him to bring said motor vehicle to a stop within the assured clear distance ahead, and while driving as above described, the said defendant did drive said 1941 Ford Tudor Sedan automobile into and against a certain 1935 Buick sedan automobile Oklahoma 1940 license 1-16724, which vehicle was then and there being driven south on said highway by George Washington Wilson, and in which said automobile one Mollie Cecil Wilson was then and there a passenger, with such force and in such manner as to inflict on the head and body of the said Mollie Cecil Wilson certain mortal wounds from which wounds so inflicted the said Mollie Cecil Wilson did die on the 9th day of February, 1941;" etc.

Under this charge defendant was prosecuted for manslaughter, and convicted of manslaughter in the second degree, as above stated. The statute, Tit. 47 O.S.A.1941, § 92, upon which the contention of the State is based, is as follows:

"Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. *** Any person violating the provisions of this section shall be guilty of a misdemeanor and shall, upon conviction, be fined not less than ten dollars ($10.00) and not more than one Hundred dollars ($100.00), or imprisoned in the county jail for not less than ten (10) days nor more than thirty (30) days, or by both such fine and imprisonment. Provided, that it shall be unlawful for any arresting officer to participate in or receive any portion of the fines or fees collected from any persons under this section."

The facts, about which there is very little conflict, were:

The defendant, Thomas Charlie Chandler, lived a few miles north of Arcadia, in Oklahoma County. He came to Oklahoma City on the afternoon of February 9, 1941, in a 1941 Ford automobile, remained a short while, and with his brother Quinlan O. Chandler, a cousin Annie Belle Lee and her husband Henry Lee, and Otis Long, started to return to his home. He was driving his car, and they drove to Arcadia, on U.S. paved Highway No. 66, and turned north on a dirt road, and had gone about a mile and a quarter when the collision occurred, which resulted in the death of Henry Lee and Otis Long, and of Mollie Cecil Wilson, who was riding in the front seat of the Buick car driven by her husband, George Washington Wilson. Annie Ogles was riding in the back seat of the Wilson car.

This tragedy was the result of a head-on collision between the Ford and the Buick cars, just on the north side of a hill which is designated as hill No. 2 in the pictures introduced in evidence and attached to the case-made, and about seventy-five or one hundred feet from the top of the hill. All of the parties involved were colored. The people in the Wilson car had been to church and were returning to Oklahoma City. The Ford car, driven by the defendant, was going north, and the Buick, driven by Wilson, was going south. The uncontradicted evidence of both the State and the defendant is that the collision occurred on the east side of the center of the highway; that both cars were on the east side of the center at the time of, and after the collision, and that the Ford was never across the center of the highway. The State admitted that the Buick car was on the wrong side of the road, as provided by Tit. 69 O.S.A.1941, § 583, which is as follows:

"Vehicles in meeting each other shall keep to the right of the center of the road. ***"

The evidence disclosed that the road at the point of the collision was thirty-eight feet wide; that the main travelled part of the road was on the east side of the center; that the west side was somewhat rough but was passable and cars drove on that side and had driven on that side on the day of the accident; and that it would have been impossible for defendant's car to have passed to the right, or east of the Buick, there being an inclining bank about six feet high at an angle of about forty-five degrees. The record further reveals that the road was graded by the highway maintenance crew the morning following the accident, and prior to the time the pictures introduced were taken, but witnesses testified to the condition of the road prior to the time it was graded. The collision occurred between 6:10...