Hayes v. State, A-13514
| Decision Date | 02 December 1964 |
| Docket Number | No. A-13514,A-13514 |
| Citation | 397 P.2d 524 |
| Parties | Lester Vincent HAYES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. A casual conversation between a juror and a witness for the state not relating to the case on trial is generally not prejudicial error, though conversation with a party or other persons about the case is ground for setting aside the verdict.
2. After final submission, separation of the jury or any action subjecting them to outside influence is presumed to prejudice the defendant and the burden is upon the state to prove otherwise.
3. Before final submission, the burden of proof is upon the defendant to show prejudice or denial of a fair trial.
4. Before final submission, prejudice will not be presumed in situations where contact or communication with the jury or jurors is shown.
5. The 'Best Evidence Rule', stated generally, is: For the purpose of proving the content of a writing, the original writing itself is regarded as the primary evidence, and secondary evidence is inadmissible unless failure to offer the original is satisfactorily explained.
6. 'Best Evidence' is ordinarily limited to situations where question relates to contents of written documents.
7. The prosecuting attorney should not express his private opinion as to defendant's guilt, but may state his conclusion based on the evidence.
8. Alleged error in giving of instructions will not be considered on appeal, in absence of an exception saved to the giving of the instruction unless so erroneous as to mislead and confuse the jury as to the issue of the case, or is of such fundamental nature as to deny defendant due process.
9. The taking of drugs or medicine does not constitute a defense against operating a motor vehicle while under the influence of intoxicating liquor. Title 47, § 11-902, sub-section (b).
Appeal from the County Court of Ellis County; W. R. Walton, Judge.
Lester Vincent Hayes was convicted of the Crime of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, and appeals. Affirmed.
Joseph A. Young, Jr., Burkett & Young, Woodward, for plaintiff in error.
Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.
Plaintiff-in-Error, Lester Vincent Hayes, hereinafter referred to as defendant was charged by Information in the County Court of Ellis County with the crime of Driving While Under the Influence of Intoxicating Liquor. He was tried by a jury, found guilty, and sentenced to 10 days in the County Jail and $150.00 Fine. He has perfected his timely appeal in this Court asserting several propositions of error. The facts of the case will be set forth briefly.
Defendant was employed as a traveling salesman and had stopped for the night in Shattuck at the Holiday Motel. By his own testimony, he admits taking a 'couple of drinks' of orange and vodka. He then testifies that he has a sinus condition and high blood pressure; and took a 'Triaminicin' tablet. All of this just prior to leaving the motel. He then drove toward town and jumped the curb and hit a telephone pole. Officer Davis arrived to investigate the accident. He was placed under arrest, and at the police station, given several tests for sobriety, and then to the hospital for a blood test and returned to jail. Defendant asserts that the reason for the accident and his actions and appearance on the evening in question was the result of the sinus pill and the high blood pressure and not as a result of any liquor which he drank.
Defendant's first assignment of error states that the trial court erred in refusing to grant a mis-trial for misconduct on the part of the jurors and bailiff.
The incident complained of is shown by testimony at the hearing for Motion for New Trial (cn 137-150). The record reveals that one of the jurors had a conversation with Trooper Likes, one of the State's witnesses, during the noon recess. The trooper and the bailiff testified that the conversation related only to a traffic citation which the juror had received in another county. He showed the trooper a receipt for a 'bond' and wanted to know if he would have to appear again in the court where he had posted it. The trooper told the juror he would look into the matter and let him know. The bailiff testified the trooper did not know at the time he was talking to a juror on that case. There appears no evidence in the record anywhere that the case on trial was mentioned in any respect.
The attorney general's brief states a general rule, which we deem to be applicable, from 5 Wharton's Criminal Law and Procedure (13th Edition) § 2121, at page 310, as follows:
'A casual conversation between a juror and a Witness for the state not relating to the case on trial is generally not prejudicial error, though conversation with a party or other persons about the case is ground for setting aside the verdict.'
In the case of Cox v. State, Okl.Cr., 283 P.2d 545, there is a distinction made as to the burden of proof before and after final submission. It is conceded by abundant authority and numerous decisions that after final submission that separation of the jury or any action subjecting them to outside influence is presumed to prejudice the defendant and the burden is upon the state to prove otherwise. Before final submission the courts are clear upon the matter of separation--that the burden of proof is upon the defendant to show prejudice or denial of a fair trial. 1
In the instant case, the testimony put on by the defendant was not sufficient to show prejudice to the defendant. Prejudice, before submission, will not be presumed in situations where contact or communication with the jury or jurors is shown--and nothing more.
Defendant's second assignment of error is that the trial court erred in admitting testimony concerning a blood-alcohol test, without predicate or basis of any sort being laid. The record reveals that the doctor who drew the blood sample testified as to all the details up to the time it was placed in the mail. The State Chemist took the sample from its arrival in the mail, and testified as to the report, the test, and identification. Counsel did not object to, nor did he cross-examine this positive testimony by the witness that the blood-alcohol analysis...
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