Hill v. State

• Decision Date: 20 June 1956
• Docket Number: No. A-12299,A-12299
• Citation: 298 P.2d 1066,1956 OK CR 65
• Parties: Homer Earl HILL, 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

Page 1066

298 P.2d 1066

Homer Earl HILL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12299.

Criminal Court of Appeals of Oklahoma.

June 20, 1956.

Syllabus by the Court.

1. In considering the sufficiency of the evidence, the function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that accused is guilty as charged.

2. The jury is exclusive judge of the weight of the evidence and the credit to be given to the witnesses.

3. Where there is competent and substantial evidence in the record from which the jury might reasonably conclude that the defendant is guilty of the crime charged, the jury's verdict will not be interfered with upon the ground that the evidence is insufficient to sustain the conviction.

4. Record examined, and evidence found sufficient to sustain judgment, but by reason of certain errors that may have influenced the amount of penalty assessed, though found to have been harmless, such requires a modification of judgment by reduction of $150 fine to $75, and imprisonment in jail for 60 days to 30 days imprisonment.

Appeal from County Court of Stephens County, J. W. Marshall, Judge.

Homer Earl Hill was convicted of the offense of operating a motor vehicle while under the influence of intoxicating liquor, and appeals. Modified and affirmed.

A. W. Mauldin, Duncan, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

Homer Earl Hill, plaintiff in error, hereinafter referred to as defendant, was charged in the county court of Stephens County with the crime of operating a motor vehicle while under the influence of intoxicating liquor, allegedly while driving along certain streets in the city of Duncan. The trial was before a jury, which found the defendant guilty as charged, and assessed punishment at a fine of $150 and costs, and imprisonment in the county jail for a period of 60 days.

The Attorney General has not filed an answer brief, but a motion to dismiss on the ground that the appeal was not perfected within the time provided by law. The record with petition in error was filed in this court on December 28, 1955, which was 89 days after the date on which judgment and sentence was pronounced, barely within time, if proper extensions of time were made by the trial court. The record as filed failed to show an extension of time beyond the 60 days in which an appeal in a misdemeanor case may be perfected. But we have been furnished by the court clerk of Stephens County a certified copy of an order by the county judge of Stephens County, certified as having been made and entered on November 25, 1955, granting defendant 30 days extension of time from November 30, 1955 in which to perfect appeal. By such fact the motion to dismiss is overruled.

We might observe, however, that counsel for the majority of appellants seem to have no difficulty in obtaining the maximum time in which to perfect appeals, no matter how short the record may be, and how simple the issues presented. This of course delays the processing of the appeal, the purpose of which all too often is simply for the postponing of the day of reckoning.

The State in making out its case produced Neb Lawson, poundmaster at Duncan, who testified that on July 31, 1955 at about 5 P.M. he was in Duncan at L. D. Pryor's place on U. S. Highway 81, just across the street from a beer tavern. He heard a roaring and looked up and saw a Hudson sedan being backed 'right out across the highway coming east'; that the wheels were right close to the edge of the pavement on the west side and that the car was driven south. Witness said the rear bumper of the car was broken and hanging down. About that time A. J. Alexander of the Duncan police department came by and witness advised him of the manner in which the Hudson was being driven, and asked officer Alexander if he noticed the car as it passed him down the highway.

Officer Alexander testified that as he approached the U. S. 81 Bypass on the day in question he noticed a cloud of dust and noticed a car emerge from the dust. Witness drove on and Neb Lawson described the car to him and the manner in which it was backed out over the four-lane highway, and witness decided to drive back south and further observe the car. He located the Hudson with the broken rear bumper going south on 10th Street near the Halliburton offices. Witness further testified:

'And as he went around the corner and turned back to the east he looked back at me and put his car into second and give it all it had. I pulled almost up beside him on that block, and he cut across the corner of a yard and went back south, and I pulled up to the side of him again, and he went a little over a block south or a block and a half and I got him to pull over, and got him out of the car. After I got him out of the car I asked him if he had any whiskey and he said, 'Yes, it is under the front seat'. And I went and got his whiskey out from under the front seat.

'Q. Before you searched the car he told you it was in the car? A. Yes, sir.

'Q. And after you had him out of the car and under arrest you searched the car, is that right? A. Yes, sir.'

Witness further testified that it was his opinion that at the time he arrested the defendant, defendant was in a state of intoxication, and that such conclusion was based on defendant's manner of operation of the automobile and effort to get away; the way defendant looked as he drove along, and the fact that he drove his car across a lawn and was weaving across the street, and that after stopping defendant witness smelled alcohol and the defendant admitted having a bottle of whiskey in the car.

Dale Rose of the Duncan police department saw defendant at the steps of the court house in Duncan on July 31, 1955 with officer Alexander. Witness talked with defendant and swore that he had an alcoholic breath, and witness was of the opinion that defendant was under the influence of intoxicants.

Bill Grimes, highway patrolman, testified that while eating supper on the evening of July 31, 1955, he received a call to come to the court house in Duncan to make an intoximeter test. When he got to the court house steps he saw officers Alexander, Dale Rose and Watt Caruth, and the defendant. That they got in the elevator and went to the next floor to make the test on the defendant. Defendant at first agreed to take the test, but later changed his mind, so that the test was not given, but witness said that, based on his observation of the defendant, he considered him under the influence of intoxicants.

This concluded the evidence for the State.

One Dude Clark was called to testify for the defendant. He said that he drove around Duncan with the defendant the afternoon of July 31, 1955; that he and defendant were old friends and he had not seen the defendant for a long time prior to that day. He said that the defendant did not drink any whiskey while he was with him. They drove to Mildred's Drive-In on U. S. Highway 81 where beer was sold, but he said that defendant did not go in; that defendant was complaining of pain from a foot from which certain toes had recently been amputated; that defendant was taking narcotic tablets to ease the pain, and witness said that as defendant started to leave he made a suggestion to him. Said he: 'Well, I had this whiskey that you have got here for evidence and I give him the whiskey and I said, 'you ought to go home and take some of that and let that foot get easy', and I let him have the whiskey and went in and got some beer.' Witness said that defendant soon backed out and drove away; that he did not see him take a drink.

Dr. Dana Ryan testified that on July 2, 1955 the defendant came to him with his left foot injured. His large toe and the one next to it had the tips severed and the physician operated on the foot, removing the left bone of the large toe, taking out two bones, and a small portion of the tip of the bone on the second toe. An infection set in and a second operation was necessary. Witness prescribed a small amount of narcotics by reason of pain. Defendant got out of the hospital on July 4, but came to the office of witness thereafter to have his foot dressed. On July 21 defendant was given a prescription for a dimeral tablet, to take one every four hours, but as often as three hours if absolutely necessary.

Witness thought that mixing intoxicating liquor with the taking of the narcotic tablets would increase the degree of intoxication. He did not think the taking by defendant of two of the tablets two hours before his arrest, and one or two more forty minutes before his arrest would appreciably affect his driving.

Mrs. Leona Bond testified to knowing the defendant and his family for a number of years, and she said that she was in Duncan, her former home town, on July 30, 1955, and that defendant drove her around looking for a house for her to rent. She said that defendant used his hand on the clutch of his car, and then used his crutch, and that he drove his car very well and she was not afraid to ride with him. She said that defendant was taking narcotics that day by reason of an operation on his foot; that it seemed to relieve his pain; she did not smell alcohol, but once he acted like he was drinking after taking some pills.

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