Hunter v. State
| Decision Date | 17 October 1962 |
| Docket Number | No. A-13141,A-13141 |
| Citation | 375 P.2d 357 |
| Parties | William Stanley HUNTER, 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 motion to dismiss an appeal is wholly without merit where it is predicated upon statutes allowing six months after judgment and sentence to appeal, instead of being predicated upon the amended statute allowing only 90 days to appeal, where same is filed in time.
2. The municipal court of the city of Tulsa, Oklahoma was established under the provisions of T. 11 O.S.A.1951 §§ 781, 782, establishing such courts in cities of 50- to 80,000, since at that time the city of Tulsa was the only city in Oklahoma within that population classification, and said statute is still the authority for the Tulsa Municipal Court.
3. The constitutionality of the second and subsequent offense act is upheld as against the contentions that it invades the privileges and immunities of the citizens, amounts to a denial of equal protection of the law, a denial of due process, and constitutes unjust discrimination.
4. The matter of defining crimes and fixing degrees of punishment is one of legislative power, and neither the ordinary definition of felony nor the penalty that may be imposed determines whether the act may be classified as a felony, but those questions are determined by legislative definition.
5. A court once having obtained jurisdiction of a case charging the accused with operating a motor vehicle upon the public highways of Oklahoma while under the influence of intoxicating liquor or opiates (a felony charge), it may not be divested of jurisdiction by the jury failing to find as an historical fact on evidence produced by the State that defendant had previously been convicted of a charge of operating a motor vehicle upon the public highways of Oklahoma, but may render judgment based on the finding of guilt by the jury of the charge as a first offense. 47 O.S.A. § 93.
6. Procedure adopted by the Court of Criminal Appeals relevant to prosecution under second and subsequent offense statute is not retroactive and does not serve as ground for reversal where trial court has followed well established procedure approved by Court of Criminal Appeals. 21 O.S.1961 § 51.
7. The repeal of an old law, the substance of which is re-enacted in a new law is not erased from the statutes but remains the law as to violations that may have been committed under it and that are not barred by the statutes of limitations.
Appeal from the District Court of Tulsa County; Leslie Webb, Judge.
William Stanley Hunter was convicted of the crime of driving a motor vehicle while under the influence of intoxicating liquor, and appeals. Affirmed.
W. C. Henneberry, Tulsa, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Owen Watts, Asst. Atty. Gen., for defendant in error.
This is an appeal by William Stanley Hunter from a conviction, judgment and sentence on a charge of drunken driving, second offense.
The plaintiff in error, defendant below, was charged with said offense by information in the district court of Tulsa County, Oklahoma, was tried by a jury, convicted, and his punishment fixed at one year in the penitentiary at McAlester, Oklahoma, and a fine of $1. Judgment and sentence was entered accordingly, from which this appeal has been perfected.
The State has filed a motion to dismiss the appeal, which is wholly without merit, being predicated upon the proposition that this appeal is governed by the amended statutes, Title 22 O.S.1961 § 1054, allowing three months in which to perfect this appeal.
The judgment and sentence was entered herein on May 12, 1961, and the effective date of the amendment of Title 22 O.S.1951 § 1054 was not until October 27, 1961. Notice of appeal was given on May 17, 1961, and the petition in error was filed herein on November 6, 1961, long before the effective date of the amendment revising the time for perfecting appeals to 90 days instead of six months after judgment and sentence. Hence, it is apparent this appeal was filed under the prior provisions, and is clearly not out of time, and not subject to dismissal.
It is contended by the defendant:
In this connection the record discloses the fact of the prior conviction was stipulated and was not attacked or questioned as not being brought under state law as a predicate for the charge of second and subsequent offense. We observe that the penalty imposed for the conviction forming the basis for second and subsequent offense charge was the minimum of ten days in jail, and a $75 fine, all under the terms of Title 47, § 93, O.S.Laws of 1959. The record does not establish this to have been a police court conviction on a city ordinance violation. We must presume it was not. If such had not been the case, the defendant would have objected on the ground that it was a conviction based on a city ordinance, and not a proper predicate for prior conviction in a second and subsequent offense case. Moreover, this presumption is confirmed by the fact that the defendant complains that he should have been confined in the county jail, and not the municipal jail, under the provisions of Title 11 O.S.1961 § 794, providing for imprisonment on city ordinance conviction in the city jail, and for imprisonment on state convictions in the county jail, and for that reason the defendant contends 'the sentence does not comply with the law'. Conceding the place of confinement was improper we are not herein concerned with that fact, but only the fact of a former conviction of the violation of a state statute, from which no appeal had been taken and which judgment and sentence had thus become final. Hence, we are not concerned herein with the execution of the judgment and sentence and the manner or place of execution, but only with the historic fact of a final judgment of former conviction. If the judgment and sentence or execution thereof had been questioned by appeal or by habeas corpus, the case might have been remanded and the place of confinement rectified, but such was not done, and the question is now moot, so far as this appeal is concerned.
Therefore, under the facts herein stipulated, the penalty imposed and its finality, and nothing appearing to the contrary, we are compelled to conclude that the judgment and sentence plead as a predicate for second and subsequent offense, was sufficient in the law to support the second and subsequent offense charge herein.
This situation is clearly distinguishable from the case of Booker v. State, Okl.Cr., 312 P.2d 189. Therein the record conclusively established the prior conviction was not for violation of a state statute (47 O.S.1959 § 93) but for the violation of a Shawnee city ordinance.
It is further well that we observe that the defendant admitted on cross examination that he had two convictions prior to this offense herein involved. One conviction on December 29, 1955 in the district court of Tulsa County, Oklahoma; one on April 26, 1951 in the municipal court of Tulsa, and the prior offense herein charged as stipulated on August 8, 1958. This evidence being brought out on cross examination went to his credibility as a witness, and was properly admitted in evidence. It is evident we are concerned with a habitual law violator in this case, and if the law permits he should be tried as such.
Therefore it is readily understandable why, in this appeal, the defendant devotes most of his brief to the proposition that the law under which he was prosecuted and convicted is unconstitutional.
This case was brought under the provisions of Title 47 O.S.1959 § 93, penalizing the operator of a motor vehicle while under the influence of intoxicating liquor, second and subsequent offense, as amended. The penalty provisions for such offense being imprisonment in the penitentiary for not less than one year, and not to exceed five years, and not more than a $1000 fine, etc.
The case was lodged in the municipal court of the city of Tulsa, Oklahoma under the provisions of Title 11 O.S.1951 §§ 781-782, establishing such courts in cities of 50-to 80,000 thousand, and giving them jurisdiction, coordinate with the county courts:
' § 781. In Cities of the State of Oklahoma having a population of more than fifty thousand (50,000) and not exceeding eighty thousand (80,000) inhabitants as determined by the last preceding Federal decennial census, or by the last preceding special Federal census, there shall be, and is hereby, created and established a Court of record which shall be known as the 'Municipal Court of the City of _____ (Naming the city wherein such court is established).
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