Hall v. State
| Decision Date | 23 May 1945 |
| Docket Number | A-10407. |
| Citation | 159 P.2d 283,80 Okla.Crim. 310 |
| Parties | HALL v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from District Court, Texas County; D. F. Hiner Dale, Judge.
Roy Hall was convicted of manslaughter in the first degree and his punishment assessed at four years in the state penitentiary, and he appeals.
Modified and affirmed.
Where Criminal Court of Appeals, after considering whole record found that error had been committed in misdirection of jury and that jury probably considered an instruction applicable to manslaughter in second degree in connection with charge of manslaughter in the first degree, the remedy was by reducing the punishment and not reversing the case for a new trial. 22 O.S.1951 § 1066.
Syllabus by the Court.
1. A person may be found guilty of criminal homicide from negligent operation of automobile or its use for an unlawful purpose, or in violation of law, but it must be shown that such negligent operation or use for an unlawful purpose or in violation of law was the proximate cause of the death, and the court should so instruct the jury.
2. Where one is charged with manslaughter in the first degree under statute providing that one who kills a human being while committing a misdemeanor, shall be guilty of manslaughter in the first degree, and facts justify, the defendant may be found guilty of manslaughter in the second degree upon proper instructions, as an included offense.
3. In order to establish criminal responsibility, there should be a higher degree of negligence than is required to establish civil liability, the rule in civil liability being based upon preponderance of the evidence, while in criminal cases one must be convicted beyond a reasonable doubt.
4. The interpretation of instructions should be as a whole, and not separate.
5. While 47 O.S.1941 § 92, and 47 O.S.1941 § 93 are distinct and separate statutes, evidence of the violation of both may be admissible where the evidence is a part of the res gestae.
6. Under harmless error doctrine, established by the decisions and statutes of this State, a judgment will not be set aside or new trial granted on the ground of misdirection of the jury, unless after an examination of the entire record it appears that the error complained of has probably resulted in a miscarriage of justice, or the defendant has been deprived of a constitutional or statutory right. 22 O.S.1941 § 1068.
7. The Code of Criminal Procedure of this State provides, 'The appellate court may reverse, affirm, or modify the judgment appealed from, and may, if necessary or proper, order a new trial.' Under this provision of the statute, the remedy in cases like this, where the court after considering the whole record, finds that error has been committed as above indicated, is by reducing the punishment and not reversing the case for a new trial. 22 O.S.1941 § 1066.
8. For reasons for modifying the judgment from four years in the State Penitentiary to two years in the State Penitentiary see body of opinion.
Walter L. Bullock, of Dodge City, Kan., and Grester H. Lamar, of Guymon, for plaintiff in error.
Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Geo. M. Frittz, Co. Atty., Taxes County, of Guymon, for defendant in error.
Defendant Roy Hall was charged in the District Court of Taxes County with the crime of manslaughter; was tried, convicted of manslaughter in the first degree and his punishment assessed at four years in the State Penitentiary, and he has appealed.
The assignments of error relied upon for reversal of this case are as follows:
The charging part of the information against the defendant was as follows: '* * * that Roy Hall did, * * * commit the crime of manslaughter, in the manner and form as follows, to-wit: That the said Roy Hall, then and there being in said Texas County, State of Oklahoma, on or about the 23rd day of May, 1942, did then and there wilfully, unlawfully, wrongfully, and feloniously, without design on his part, effect the death of Verne S. Hoar while the said defendant was engaged in the commission of a misdemeanor, to-wit: the crime of reckless driving of a Ford truck on U. S. Highway 54 a distance of about 1/8 mile east of the incorporated town of Tyrone, Texas County, Oklahoma, by driving said motor truck in a northeasterly direction on said U. S. Highway 54 to the left of the center of said highway aforesaid; that the said defendant then and there being did then and there wilfully, recklessly, wrongfully and unlawfully drive the said Ford truck with Kansas license tag No. T84-180 thereto attached, in such a manner as to cause it to run into, against and upon another motor driven vehicle, to-wit: a Ford Tudor, 1937 model, with California tag No. 39Y-217 thereto attached, said last mentioned motor vehicle was driven in a southwesterly direction to the right of the center of the said Highway 54 in which said last named motor vehicle there was then and there riding Verne S. Hoar, and other occupants of said automobile unknown to your informant at this time; that the said Roy Hall by driving his Ford truck in a northeasterly direction on said highway 54 as aforesaid, then and there and thereby inflicted certain mortal wounds on the body of him, the said Verne S. Hoar, from which said mortal wounds the said Verne S. Hoar did thereafter presently die, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the State.'
It may be noted that the information does not charge the defendant with being drunk, or under the influence of intoxicating liquor at the time of the alleged offense.
The County Attorney, in the opening statement to the jury, stated that the evidence would reveal that defendant was drunk at the time of the alleged offense, and that by reason of his negligence and drunken condition he drove his automobile on the wrong side of the highway, and caused the death of one person and the injury of others; also that he made statements with reference to the finding of bottles containing whiskey under and in close proximity to the truck of defendant, and that the cab of the truck 'smelled like a whiskey barrel.'
At the trial of the case, evidence was submitted by the State to substantiate these statements. The record reveals that no exception was taken to the remarks of the County Attorney at the time they were made, and no objections made or exceptions saved to the introduction of the evidence.
At the close of the statement of the County Attorney, counsel for defendant made a motion that the court 'direct the jury to return a verdict of not guilty upon the opening statement of the County Attorney,' because of that part of the statement with reference to the intoxication of the defendant. Under the practice and decisions of this court, the exception to the remarks of the County Attorney were not sufficient to protect the record. Abbott v. State, Okl.Cr.App., 149 P.2d 514; Tucker v. State, 9 Okl.Cr. 587, 132 P. 825; Gaines v. State, 18 Okl.Cr. 525, 196 P. 719. And the Court did not err in overruling the motion to direct the jury to return a verdict of not guilty.
But aside from the method of procedure, we do not think there was error in the remarks of the County Attorney, nor to the introduction of the evidence of the finding of the whiskey, nor as to the drunken condition of the defendant as revealed by the facts at the trial, and under the charges in the information.
The defendant was charged with driving in a reckless and negligent manner. If he was drunk or under the influence of intoxicating liquor at the time this would be a circumstance for the consideration of the jury as to whether he was driving in a reckless and careless manner, and while it may have proved the commission of another offense, it also proved a fact which the jury would have the right to know in coming to a conclusion as to whether the defendant was driving in a careless and reckless manner, and in violation of the statute under which defendant was charged. Often the evidence is so closely connected and a part of the res gestae that the State is permitted to offer evidence though it proves the commission of another crime. Lizar v. State, 74 Okl.Cr. 368, 126 P.2d 552; Zewalk v. State, 73 Okl.Cr. 202, 119 P.2d 874; Johnson v. State, 70 Okl.Cr. 270, 106 P.2d 149.
The evidence in this case reveals that on the evening of May 22 1942, the deceased, Verne A. Hoar and his son Edwin Hoar, eleven years of age, entered the automobile of Ralph O. Johnson at Wichita, Kansas, about 7:30 o'clock, with the intention of going to California, where Mr. Johnson lived. The deceased was to share the expenses of the trip, and to pay $15 therefor. Other passengers were a Mr....
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...second degree. The action of the trial court in giving the instruction complained of is therefore not error." The case of Hall v. State, 80 Okl.Cr. 310, 159 P.2d 283, presents facts which are similar to the instant case. information alleges substantially the same offense, to-wit: manslaught......
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