Gessman v. State
| Decision Date | 30 August 1972 |
| Docket Number | No. A--16644,A--16644 |
| Citation | 500 P.2d 1092 |
| Parties | Fred GESSMAN, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Fred Gessman, hereinafter referred to as defendant, was convicted in the District Court of Lincoln County, Case Number CRF--70--37, of driving while intoxicated, second offense (47 O.S., § 11--902). Defendant was tried in a two-stage proceeding and the jury assessed the punishment at not less than one (1) nor more than three (3) years imprisonment and a fine of Two Hundred Fifty Dollars ($250.00). Judgment and sentence was imposed on November 6, 1970, and this appeal perfected therefrom.
The evidence established that on May 23, 1970, Donna Sue Turk was driving a 1963 Chevrolet approximately four miles east of Chandler, in Lincoln County, at about 4:30 p.m., when a 1963 Rambler, approaching her from the opposite direction, turned in front of her and struck the left front end of her vehicle. Miss Turk's Chevrolet was knocked about 100 feet from the impact off the road while the Rambler remained setting in the middle of the highway. After Miss Turk got out of her car, she approached the Rambler and saw the defendant get out on the driver's side of the car, from under the steering wheel. Miss Turk recognized a passenger in the Rambler as being Corby Weaver. According to Miss Turk, the defendant had trouble getting out of his car, staggered, was barefoot, and then walked around using profanity.
Ernest Talley testified that he had been following the Rambler and witnessed the automobile accident when the Rambler turned into the path of an approaching car. Mr. Talley testified that the Rambler was occupied by two men and that the one identified as the defendant, was driving. According to Mr. Talley, the defendant denied that he was driving the Rambler. Mr. Talley testified that he saw the defendant get out on the driver's side of the Rambler, and that defendant was barefoot and smelled of alcohol.
Highway Patrolman Newman arrived at the scene of the accident and found that the driver of the Rambler was gone. Officer Newman testified that the Rambler, located in the middle of the roadway, could not be moved and it was necessary to summon a wrecker to move it. While investigating the accident and while looking for the driver of the Rambler, Officer Newman saw a half-empty bottle of whiskey in the passenger area of the Rambler and seized it. Two other highway patrolmen, Officers Hancock and Wiseman, were summoned to the scene to assist with the accident, direct traffic, and clear the wreckage off the highway. Officers Hancock and Wiseman then began looking for the driver of the Rambler, who was missing. After going to the Sheriff's office, Officers Hancock and Wiseman returned to the scene of the accident about 12:20 a.m. of May 24, about one and one-half hours after the accident, and found the defendant asleep inside the cab of a windrower located some 300 feet from the scene of the accident. The officers aroused the defendant, took him from the cab of the machine, and took him to the Sheriff's office. The officers described the defendant as barefoot, unsteady on his feet, smelling of alcohol, and having slurred speech.
The defense called Corky Weaver who testified that he was a passenger in the Rambler driven by the defendant on the evening of May 23, 1970. According to Mr. Weaver, he and the defendant had two beers apiece at the defendant's house before going to a tavern to get a case of beer just prior to the accident. Weaver stated that the defendant was capable of driving at the time defendant had the collision. After the collision, Mr. Weaver testified that the defendant left the scene.
The defense also called James Thomas, who testified that he was an acquaintance of the defendant and that defendant walked with a peculiar swing.
It is defendant's first contention that he was arrested illegally. Defendant argues that a warrant of arrest was issued on May 23, 1970 for the defendant, although the information charging the defendant with a crime was not filed until May 27, 1970. Since 22 O.S.1971, § 171 provides for a filing of a verified complaint prior to the issuance of a warrant of arrest, defendant contends that his arrest was improper.
It is clear that the defendant was arrested when Officers Hancock and Wiseman found him in the windrower machine and took him into custody. The validity of the defendant's arrest is not dependent upon the warrant for arrest. 22 O.S.1971, §§ 186 and 190. It is immaterial whether or not the officers advised the defendant that he was under arrest at the windrower machine, since the actual restraint of his person and taking him into custody constitutes an arrest. We are of the opinion that the officers were justified in arresting the defendant as they had probable cause to believe that he had committed a felony in that he, as driver of the vehicle involved in an accident resulting in damage and injury, left the scene in violation of 47 O.S.1971, § 10--102, which requires that such a person 'shall remain at the scene of the accident' until he has given his name, address, registration number, and operator's license and rendered aid. The officer had learned his identity and had ample reason to seek him out. Furthermore, upon finding the defendant, the officers were justified in arresting him for a misdemeanor committed in their presence in that he had committed the offense of public intoxication.
However, even if the arrest was unlawful, which it was not, it would not constitute reversible error. Harrison v. State, Okl.Cr., 461 P.2d 1007, 1009 (1969).
It is defendant's second contention that the examining magistrate erred in binding defendant over for trial since the evidence at the preliminary examination was insufficient. At a preliminary examination, it is only necessary that the evidence indicate that a felony was committed and that there be reasonable cause to believe the defendant guilty thereof. It is not necessary that the evidence at the preliminary be sufficient to support a conviction. Taylor v. State, 96 Okl.Cr. 1, 247 P.2d 749. Upon examining the transcript of the preliminary examination, we are satisfied that the evidence was sufficient to bind the defendant over for trial on the charge, subject to proof of the...
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