Frazier v. State
| Decision Date | 14 October 1953 |
| Docket Number | No. A-11880,A-11880 |
| Parties | FRAZIER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. A complaint, information or indictment is sufficient where it apprises an accused of the particular offense or crime with which he is charged and enables him to prepare his defense and to protect himself from jeopardy against another prosecution on the same state of facts.
2. It is the general rule that the courts will take judicial notice of the rules and regulations of the executive departments of the government; particularly where said matters are beyond dispute and symbolize the provisions of the statute.
3. Under the provisions of Title 47, § 116.1, O.S.1951, subsection (4)(a), axle loads on wheels whose centers can be included between two parallel transverse vertical planes 40 inches apart are one axle regardless of the number of axles or of wheels, the load limit of which is fixed by the statute at 18,000 pounds.
4. Under the provisions of Title 47, § 116.1, subsection (4)(b), group or tandem axles whose distance of feet between extremes thereof is not less than 4 feet and not more than 7 feet from the center of said axles are limited to a maximum on such axles of 32,000 pounds; said subsection (4)(b), Title 47, § 116.1, O.S.1951, fixes the minimum spacing distance of tandem or groups of axles allowed by law which may be arranged a greater distance apart than 40 inches, but fixes the minimum distance thereof at 4 feet.
5. In an effort to arrive at the legislative intent courts should employ ordinary meaning of the words contained in the statute, with regard to the connection in which they are used, and of the evil to be remedied.
6. A regulation by an executive department of government, addressed to and reasonably adapted to the enforcement of an act of the legislature, the administration of which is confided to such department, has the force and effect of law if it be not in conflict with espress statutory provision.
7. Where a departmental construction of a statute is made in 1948 and withdrawn in 1949 and a new construction in complete harmony with the language of the statute is made, and two sessions of the legislature, the 1951 and the 1953 sessions, have convened and adjourned and no change has been wrought in the statute or the interpretation thereof, the said construction not being in conflict with the express statutory provisions will be followed in the interpretation of the statutory provision.
On Rehearing
1. An appellate court may take judicial cognizance of any matter of which the trial court may take such notice.
2. The Criminal Court of Appeals in a proper case will take judicial notice of an indisputable matter, which partakes of the nature of a legal proposition.
3. Appellate and other courts should resort to the use of judicial notice with caution.
4. In a case where the matter of which judicial notice is sought to be invoked, are rules and regulations of a department charged with the administration of a law, consisting of a graphic chart correctly symbolizing certain provisions of law, this court may take judicial notice thereof, as an aid to further understanding of its opinion.
George Miller, Jr., Oklahoma City, for plaintiff in error.
Clyde T. Patrick, County Atty., Creek County, Sapulpa, Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., for defendant in error.
The plaintiff in error William H. Frazier, defendant below, was charged by complaint in the county court of Creek county, Oklahoma, with the commission of a misdemeanor on December 3, 1952 on U. S. Highway No. 66, five miles north of Sapulpa in the aforesaid county. The complaint in substance alleged that the said defendant was driving an overloaded truck on said highway in violation of the provisions of Title 47, § 116.1, O.S.1951. The defendant waived a jury; the case was tried by the judge who found the defendant guilty, fixed his punishment at a fine of $50 and costs, and judgment and sentence was entered accordingly.
The defendant attacked the sufficiency of the original complaint by motion to quash for insufficiency of facts to constitute an offense. The motion was overruled. Leave was granted to amend. The charging part of the information as amended reads in substance as follows, to wit (The amendment is italicized.):
To this complaint as amended, the defendant interposed a demurrer on the ground of insufficiency to state a cause of action, which was overruled, with an exception. The pertinent part of the statute, under which this action was brought, Title 47, § 116.1, O.S.1951, reads as follows:
'Except as otherwise provided by this Act; it shall be unlawful and constitute a misdemeanor for any person to drive, operate, or move, or for the owner to cause or permit to be driven or moved upon any road or highway within this State, whether paved or otherwise, any vehicle or vehicles or combination of vehicles of a size or weight exceeding the limitations stated in this Act, or any vehicles which are not constructed or equipped as required by this Act, or to transport over any road or highway within this State, whether paved or otherwise, any load or loads, exceeding the weights or dimensions prescribed by this Act. * * * '(a) No vehicle or combination of vehicles shall have a gross weight in excess of sixty thousand (60,000) pounds; no vehicle, or combination of vehicles shall have a greater weight than six hundred (600) pounds per inch width of tire upon any wheel concentrated upon the surface of the highway using high pressure tires, and a greater weight than six hundred fifty (650) pounds per inch width of tire upon any wheel concentrated upon the surface of the highway using low pressure tires, nor any axle load in excess of eighteen thousand (18,000) pounds. An axle load shall be defined as the total on all wheels whose centers may be included between two (2) parallel transverse vertical planes forty inches (40"') apart.
'(b) No group of axles shall carry a load in pounds in excess of the value given in the following tables corresponding to the distance in feet between the extreme axles of the group, measured longitudinally to the nearest foot:
Distance in Feet Maximum Load in
between the Pounds Carried
Extremes of any on any Group
Group of Axles of Axles
4 32,000
5 32,000
6 32,000
7 32,000
* * * [etc., up to]
39 60,000."
The foregoing schedule is identically the same in both the Act of 1947 and the Act of 1949.
The gist of the offense as alleged in the amended complaint is that the defendant's semi-trailer truck was overloaded on its group of axles to the extent of 1,020 pounds. We are of the opinion the amended complaint is sufficient to apprise the defendant of what he was called upon to meet and good against both the motion and the demurrer. It has been repeatedly held that a charge in a complaint, information or indictment is sufficient where it apprises an accused of the particular offense or crime with which he is charged and enables him to prepare his defense and to protect himself from jeopardy against another prosecution on the same state of facts. Douglas v. State, 57 Okl.Cr. 154, 47 P.2d 215. The true test of the sufficiency of the information is 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. Stokes v. State, 86 Okl.Cr. 21, 189 P.2d 424, 190 P.2d 838. So measured the complaint herein was sufficient.
The evidence in support of the complaint is not in dispute. In substance the state's evidence was that the vehicle in question was composed of two parts, a truck-tractor composed of two axles, a front steering axle, and a back driving axle and a semi-trailer, at the rear of which is a group of two axles. The front of the semi-trailer was fastened on what is known as a fifth wheel with the weight thereof being supported by the rear driving and carrying axle of the truck-tractor. The rear axles of the semi-trailer consisted of two axles with multiple wheels, which arrangement is commonly called tandem axles. All together there are four axles, the steering axle and the three carrying axles, including the driving axle as a carrying axle.
The Act herein in question was approved on May 31, 1949. A graphic chart prepared and distributed by the Department of Public Safety as a part of the departmental regulation under the law symbolizing the provision of the statute (not contained in the record herewith presented but a matter of judicial notice, the date of the promulgation of said symbols and their dissemination was commenced shortly after June 1949, as reflected on the original engineer's tracing) shows the weight restrictions of vehicle that may be lawfully operated on the highways of Oklahoma. These departments had a right under the statute to make a rule chart setting forth the symbols illustrative of the provisions of said statute....
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