Frantz v. State

• Decision Date: 11 September 1940
• Docket Number: A-9675.
• Citation: 105 P.2d 561,70 Okla.Crim. 214
• Parties: FRANTZ v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P.2d 561

70 Okla.Crim. 214

FRANTZ v. STATE.

No. A-9675.

Court of Criminal Appeals of Oklahoma

September 11, 1940

Syllabus by the Court.

1. Where a defendant is charged with driving an automobile while under the influence of intoxicating liquor, and when arraigned at the preliminary examination enters a plea of guilty, which is afterwards withdrawn and a plea of not guilty entered, it is error for the court to admit in evidence that defendant had entered a plea of guilty at the preliminary hearing.

2. The asking of this question by the county attorney, where the court sustains an objection to same, and directs the jury not to consider same, may or may not be reversible error. The court will examine the entire record to determine whether the asking of the question in the presence of the jury was prejudicial.

Appeal from District Court, Kingfisher County; C. C. Wybrant, Judge.

Joe E Frantz was convicted of driving an automobile while he was under the influence of intoxicating liquor, and he appeals.

Judgment reversed.

R. F Shutler, of Kingfisher, and Simons, McKnight, Simons Mitchell & McKnight, of Enid, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and William O. Breedlove, Co. Atty., of Kingfisher, for the State.

BAREFOOT Judge.

Defendant was charged in Kingfisher County with the crime of operating a motor vehicle upon the public streets of the "City of Kingfisher, Kingfisher County, Oklahoma, while under the influence of intoxicating liquor"; was tried, convicted, and sentenced to pay a fine of $400 and costs, and has appealed.

The facts, as revealed by the record in this case, were that defendant, who was a nephew of a former Territorial Governor, Frank Frantz, was formerly a resident of Enid, Oklahoma, but for two years prior to the 25th of November, 1937, was a resident of Kingfisher, Kingfisher County, where he was holding the position of master timekeeper for the Works Progress Administration. He was unmarried, and had a cabin located near the city limits, which was his home. On the 25th day of November, 1937, which was Thanksgiving Day, he attended a football game in Kingfisher, in company with a young lady. While in attendance at the game he had two drinks. This was about the middle of the afternoon. After the game he proceeded to his camp cottage. On the way he was asked by friends to come to their home and have sandwiches that evening. He, with two of his friends, and the young lady remained at his cottage until about 7 p. m., when he started in his automobile with the intention of seeing a friend on the way. The other parties had left his cabin and he was driving alone. He went by a drug store, which was on the Main Street, and on U.S. Highway No. 81, for the purpose of securing a package of cigarettes. He honked and was waited on while sitting in his car. He immediately drove south on Highway No. 81 for two blocks, and turned west on Highway No. 33 for two blocks, and turned south. When he turned south he saw the lights of a car that seemed to be following him. He stopped his car and honked, thinking that someone in the car desired to see him, and that they would drive up alongside. They did not do so, and he started his car, and had gone about one hundred feet when he heard a signal and stopped, and a member of the Highway Patrol approached him and asked him, "What kind of liquor had he been drinking", and whether he had any liquor in his car. Defendant was ordered out of his car, and his person and his car was searched by the two members of the Highway Patrol, but no intoxicating liquor of any kind was found, either on the person of defendant, or in his car. One of the patrolmen got in his car, and drove with him to the jail, and he was placed therein. The charges filed in this case was the outgrowth of his arrest.

The evidence of the two patrolmen was that they had become patrolmen in June, 1937, and were stationed at Kingfisher. That they had gone on duty about 6 p. m., and had been informed by a policeman of Kingfisher that some one had told them that defendant had left the ball game intoxicated, and for them to locate him and pick him up. That they saw the Chief of Police, Mr. Ahern, and he informed them that defendant was sitting in his car in front of the Jones Drug Store. That they saw defendant there, but did not arrest him, as they stated, because they had no right to do so, as he had done nothing to violate the law. However, when he started in his car as above outlined they followed him. They followed him, and came to the conclusion that his car had weaved from one side of the street to the other, and they stopped him and arrested him under the circumstances above outlined.

They further testified that in their opinion he was under the influence of intoxicating liquor at the time of his arrest; that he staggered and talked like one that was under the influence of liquor, and they considered it unsafe for him to drive a car.

When defendant was placed in jail he requested that a doctor, whom he knew, be called to see him. This request was not granted, but a member of the Highway Patrol, who had arrested him, called another doctor, whom they had been directed to call in cases of this character.

This doctor testified that he saw defendant and smelled liquor on his breath, and that in his opinion he was under the influence of intoxicating liquor. That defendant was talking and acting like a man who was under the influence of liquor, and that he was of the opinion that he was.

The jailer, who saw defendant, testified to about the same state of facts.

The defendant, testifying in his own behalf, admitted taking two drinks of liquor at the half of the football game about the middle of the afternoon. He denied that he had taken any other liquor, and denied that he was under the influence of intoxicating liquor. He testified that he had never before been arrested or convicted of any crime. He also testified that his car did not weave in any way, and that the only cause for going out of its natural course, was that he lighted a cigarette which he had bought at the drug store. He also testified that he at no time drove over fifteen or twenty miles an hour, and the Highway Patrolmen corroborated this statement. He at no time violated any highway or traffic law.

The young lady who accompanied him to the football game testified as a witness for defendant. She was with him until about 7 p. m., just before he was arrested, when she left and accompanied her mother to a Thanksgiving Dinner at her grandfathers. She testified that defendant was not under the influence of intoxicating liquor when he drove from the football game, and when she left him about 7 p. m. That the only drinking she saw was when he took the two drinks between "halves" at the foot-ball game.

The above statement fairly states the evidence as shown by the record and without going into too much detail.

It is contended by defendant that under the above facts the defendant was wrongfully convicted:

First: That the evidence was procured in violation of defendant's constitutional rights, and upon an improper and unlawful search and seizure of defendant.

Second: By reason of certain improper and incompetent questions of the county attorney, and the introduction of certain incompetent evidence.

Third: That the verdict of the jury, the judgment and sentence of the court was excessive, and was given and imposed as the result of passion and prejudice on the part of the jury.

These assignments of error may well be considered together.

During the trial of this case, and while defendant was on the witness stand, he was asked by the county attorney, "If he had ever been warned" by an officer. Counsel for defendant objected to this question, and his objection was overruled. The county attorney again asked the defendant if he had ever been warned by an officer, to which defendant replied, "Warned about what?" The county attorney said, "About some possible violation". At this juncture the trial court said, "I don't think you better proceed any further with that." The county attorney then asked the witness, "And you testified you have never been convicted of a crime?" The defendant replied he had so testified, and then the county attorney asked, "I will ask you if after you were arrested, you didn't go down to the justice of the peace court, in the preliminary examination and plead guilty?" This question was highly improper and incompetent. It was objected to by counsel for defendant, and after a hearing at the judge's bench, and out of the hearing of the jury, the objection was sustained by the court, and counsel for defendant made a motion to grant defendant a mistrial. This motion was overruled, and at the request of counsel the court instructed the jury that the question propounded by the county attorney with reference to proceedings had on arraignment in the justice court was withdrawn from their consideration, and that they were directed not to consider the same or permit it to enter into their deliberations. Under ordinary circumstances the sustaining of the objection to the above question, and directing the jury not to consider same, would be sufficient reason for a refusal to reverse the judgment of the court and jury. We have so held. Haithcock v State, 63 Okl.Cr. 276, 74 P.2d 641; Hooper v. State, 7 Okl.Cr. 43, 121 P. 1087; Coleman v. State, 6 Okl.Cr. 252, 253, 118 P. 594; Ray v. State, 35 Okl.Cr. 322, 250 P. 438. But in construing this proposition it occurs to us that the question should be viewed in the light and circumstances of each individual case. In a case where the evidence was convincing and certain it might not constitute error; in a case where the...