Douglas v. State, A-11195

• Citation: 93 Okla.Crim. 132,225 P.2d 376
• Decision Date: 13 December 1950
• Docket Number: No. A-11195,A-11195
• Parties: DOUGLAS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 376

225 P.2d 376

93 Okla.Crim. 132

DOUGLAS v. STATE.

No. A-11195.

Criminal Court of Appeals of Oklahoma.

Dec. 13, 1950.

Syllabus by the Court.

1. Where a defendant goes to trial without demurring to an information, and first questions its sufficiency by objection to the introduction of evidence, every intendment and presumption will be indulged to sustain the information.

2. The gist of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.

3. An information that informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.

4. In indictments or informations for statutory offenses, it is only necessary to use the language of the statute, unless it is apparent that there are elements of the offense not described in that language.

5. Section 10324, O.S.1931, 47 Okla.St.Ann. § 93, makes it an offense for one who is under the influence of intoxicating liquor, or who is an habitual user of narcotic drugs, to operate or drive a motor vehicle on any highway within the state.

Under this statute it was the intention of the Legislature to punish those who were in fact 'under the influence of intoxicating liquor', whether it be caused from drinking beer with an alcoholic content of 3.2 per cent, or liquor in excess thereof.

6. An instruction which does not result in substantial prejudice to defendant is harmless error.

7. The punishment fixed by chapter 16, section 3, Session Laws 1923, is not excessive, but is very moderate considering the gravity of the offense, and where the jury fixes the punishment within its limits we will ordinarily not interfere with the same.

Wimbish & Wimbish, Ada, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., W G Long, County Atty, Ada, for defendant in error.

BRETT, Judge.

The plaintiff in error Milo B. Douglas, defendant below, was charged by information in the county court of Pontotoc County, Oklahoma, with the offense of operating a motor vehicle while under the influence of intoxicating liquor. The alleged offense occurred on or about August 29, 1948 in Pontotoc county at about 11:00 o'clock at night while the defendant was driving south on Highway 99 towards his home at Fittstown about 8 miles south of Ada, Oklahoma. The defendant was tried and convicted by a jury and his punishment fixed at a fine of $250 and 60 days in jail. This appeal was lodged in this court on February 16, 1949; defendant's brief was filed on June 15, 1949. The case was set for oral argument on March 22, 1950 and submitted on the record and brief of the defendant Douglas, and the state given 20 days to brief. The state's brief was filed on September 13, 1950.

The defendant's first contention is that the court erred in admitting evidence over his objection for the reason that the information failed to state an offense. In this connection the information was brought under the provisions of Title 47, § 93, O.S.A.1941, the pertinent part thereof reading in part as follows: 'It shall be unlawful for any person who is under the influence of intoxicating liquor, * * * to operate or drive a motor vehicle on any highway within this State, as defined in Section 1, of this Act (10322) and any person violating the provisions of this Section shall be deemed guilty of a misdemeanor for the first offense and upon conviction therefor shall be punished by imprisonment in the county jail for a period of time not to exceed on (1) year, or by a fine of not more than Five Hundred ($500) Dollars or by both such fine and imprisonment.'

This being a first offense, we will not set out the portion of the statute in relation thereto defining second or subsequent offenses as a felony and fixing punishment.

The charging part of the information is as follows, towit: '* * * The defendant did, in said County and State, at the above named day and year aforesaid, did then and there unlawfully, wilfully and wrongfully, while under the influence of intoxicating liquor, drive, operate and propel an automobile, to-wit: 1946 Ford Coach, on the public highway of Pontotoc County, Oklahoma, to-wit: from a point to your complainant unknown on State Highway 99 to another point in Pontotoc County, Oklahoma, to-wit: about eight miles South of Ada, Oklahoma, on said State Highway No. 99, contrary * * *'.

The contention as to the insufficiency of the information is not well taken. To this information the defendant did not demur but waited until the case was called for trial and objected to the introduction of evidence. This attack must be considered in light of Morrison v. State, 35 Okl.Cr. 311, 250 P. 543. At page 313 of 35 Okl.Cr., at page 543 of 250 P. this court said: 'It is generally held that, where a defendant goes to trial without demurring to an information, and first questions its sufficiency by objection to the introduction of evidence, every intendment and presumption will be indulged in to sustain the information. Where no demurrer is filed nor objection made, and an information is first challenged by a motion in arrest of judgment, the same rule obtains. The motion should be overruled, unless there is some fatal defect which is not waived by failure to demur or object. Section 2756, Comp.Stat.1921; 8 R.C.L. 228; Feige v. State, 11 Okl.Cr. 49, 142 P. 1044. The information in this case sufficiently charged the offense defined, and there is no merit in the contention.'

Furthermore, the gist of the offense as defined by the statute is driving a motor vehicle on any highway within the State of Oklahoma while under the influence of intoxicating liquor. The best answer to this contention is the information itself. It alleges all the essential elements of the offense subject to proof under varying forms and conditions. This court has sustained many informations in substantially the same form as the one at bar. Argo v. State, Okl.Cr.App., 200 P.2d 449, 451, not yet reported in State reports. Therein the charge was driving a motor vehicle while under the influence of intoxicating liquor. The defendant attacked the sufficiency of the information. In connection with this contention we said: 'This court has repeatedly held that the gist of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Moreover, an information that informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient. Dunham v. State, 78 Okl.Cr. 54, 143 P.2d 834. Furthermore, as to when an information is sufficient, it has been held that an information is sufficient which states the offense clearly and distinctly in ordinary and concise language, without repetition, in such manner as to enable a person of common understanding to know what was intended. Hancock v. State, 80 Okl.Cr. 1, 156 P.2d 155; Sparks v. State, 72 Okl.Cr. 283, 115 P.2d 277; Norris v. State, 68 Okl.Cr. 172, 96 P.2d 540; Simpson v. State, 67 Okl.Cr. 152, 93 P.2d 541; Harry v. State, 59 Okl.Cr. 302, 58 P.2d 340; Hulsey v. State, 86 Okl.Cr. 273, 192 P.2d 301.' See also Rheuark v. State, 78 Okl.Cr. 121, 144 P.2d 754; King v. State, 73 Okl.Cr. 404, 121 P.2d 1017; Sudderth v. State, 45 Okl.Cr. 260, 282 P. 1109; Gault v. State, 42 Okl.Cr. 89, 274 P. 687.

The defendant contends however that the information should have alleged in addition to the things charged therein that the defendant was 'under the influence of intoxicating liquor so far as to affect the nervous system, brain or muscles of the driver,' etc. He says since the information did not so allege it was insufficient. The answer to this contention is found in Doolin v. State, 69 Okl.Cr. 88, at page 91, 101 P.2d 271, at page 273, wherein this court said: 'Under the decisions of this court it is well settled that in indictments or informations for...