Luellen v. State

• Citation: 81 P.2d 323,64 Okla.Crim. 382
• Decision Date: 01 July 1938
• Docket Number: A-9377.
• Parties: LUELLEN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

81 P.2d 323

64 Okla.Crim. 382

LUELLEN v. STATE.

No. A-9377.

Court of Criminal Appeals of Oklahoma

July 1, 1938

Syllabus by the Court.

1. A defendant charged under Section 10324, Oklahoma Statutes 1931 (Okl.St.Ann., Tit. 47, Sec. 93), which provides punishment for driving a motor vehicle while under the influence of intoxicating liquor, and the punishment being by confinement in the penitentiary not to exceed one year or a fine not to exceed two thousand dollars, or by both such fine and imprisonment, cannot be convicted under Session Laws 1933, Section 14, Chapter 113 (Okl.St.Ann., Tit. 47, Sec 92), which provides the manner in which a vehicle may be driven on the public highways of this state and the punishment of which is a misdemeanor, and which provides for a fine of not less than ten dollars nor more than one hundred dollars, or confinement in the county jail not less than ten days nor more than thirty days, or by both such fine and imprisonment.

2. After the evidence of the state in a criminal case is presented, and no demurrer is filed nor a motion for directed verdict is presented, and defendant offers himself as a witness in his own behalf and presents other evidence, the appellate court will then consider all of the evidence introduced by both the state and defendant in a determination of its sufficiency to support the verdict.

3. A fair and reasonable definition of the term "under the influence of intoxicating liquor" as used in the above section of the statute is "That if intoxicating liquor has so far affected the nervous system, brain or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is 'under the influence of intoxicating liquor' within the meaning of the statute."

4. It is the opinion of the court that this or a similar instruction defining the term "under the influence of intoxicating liquor", should be given by the court and especially if requested by defendant where one is prosecuted for driving an automobile "while under the influence of intoxicating liquor."

5. Record examined, and judgment and sentence modified from a fine of two hundred dollars and six months in penitentiary to a fine of two hundred dollars.

Appeal from District Court, Garfield County; J. W. Bird, Judge.

Albert Luellen was convicted of driving an automobile while under the influence of intoxicating liquor, and he appeals.

Judgment modified and as modified affirmed.

L. E. Roseboom, of Enid, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Roy Holbird, Co. Atty., of Enid, for the State.

BAREFOOT Judge.

The defendant was charged by information in Garfield County with the driving of an automobile while under the influence of intoxicating liquor, was convicted and sentenced to pay a fine of $200, and serve six months in the penitentiary, and has appealed.

The information in this case charged the defendant, Albert Luellen, did "unlawfully, wilfully, knowingly, and feloniously drive and operate a certain motor vehicle * * over and upon a public highway * * * while under the influence of intoxicating liquor". From the above it will be noted that the only charge made against the defendant was that he operated an automobile upon the public highway while under the influence of intoxicating liquor. It is contended by defendant that the verdict of the jury is contrary to and not supported by the evidence.

In the first place the information in this case charges the defendant with driving a car upon the public highway while under the influence of intoxicating liquor. The charge is brought under Section 10324, Oklahoma Statutes, 1931 (Okl.St.Ann., Tit. 47, Sec. 93), which is as follows: "It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one's person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this Act, to operate or drive a motor vehicle on any highway within this State, as defined in Section 1, of this Act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than Two Thousand ($2,000.00) Dollars, or by both imprisonment and fine."

In the highway laws of many states, in addition to a provision similar to the above, they have an additional statute defining careless and reckless driving, and making the same a crime, and usually providing as a punishment that of a misdemeanor. The statute of Oklahoma with reference to driving upon the public highway, Session Laws, 1933, Section 14, Chapter 113 (Okl.St.Ann., Tit. 47, Sec. 92), provides:

"Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. Provided, no motor bus or other motor vehicle transporting passengers for hire shall be driven upon any public highway of this state at a rate of speed in excess of forty-five (45) miles per hour."

And further provides, that any person guilty of violating said section shall be guilty of a misdemeanor and shall, upon conviction, be fined not less than ten dollars and not more than one hundred dollars, or imprisonment in the county jail not less than ten days, nor more than thirty days, or by both such fine and imprisonment. Under the law these are distinct statutes, and the violation of each constitutes a crime within itself. Here the defendant was charged under the first provision with the crime of driving an automobile upon a public highway, while under the influence of intoxicating liquor. He could not be convicted under this charge of a violation of Session Laws, 1933, Sec. 14, Ch. 113 (Okl.St.Ann., Tit. 47, Sec. 92), and as stated in 86 A.L.R. p. 1274, Note B., Driving while intoxicated.

"The general rule precluding the punishment as reckless driving of an act made a separate offense for which a punishment is provided has been applied in cases involving statutes making it an offense to drive an automobile while under the influence of intoxicating liquor.

Thus in People v. McGrath (1928) 94 Cal.App. 520, 271 P. 549, it was held that, where one section of a statute made it unlawful to drive an automobile on a highway while under the influence of intoxicating liquor and another declared that a person who knowingly and wilfully drove any vehicle on a highway either without due caution and circumspection or in such manner as to endanger the life, limb, or property of any person, would be guilty of reckless driving, the defendant could not be convicted of reckless driving under an information charging him merely with driving while under the influence of intoxicating liquor, since the two crimes were distinct in law and fact, and the former was not included in the latter.

Also, in State v. Andrews (1928) 108 Conn. 209, 142 A. 840, on an appeal from a conviction of reckless driving and driving while under the influence of intoxicating liquor, the court, applying the test whether the same facts required to support the proof of one offense would be sufficient to prove the other, held that the offenses were distinct, and said that facts might establish the offense of driving under the influence of intoxicating liquor and yet show a degree of care for the safety of others.

And a Maine statute declaring that whoever shall operate a motor vehicle on any way recklessly or while under the influence of intoxicating liquor, so that the lives or safety of the public are in danger shall be punished as prescribed, was held in State v. Derry (1920) 118 Me. 431, 108 A. 568, to denounce two distinct offenses."

The evidence in the case at bar on behalf of the state in chief revealed: That the defendant was driving a Chrysler automobile on U.S. Highway No. 64, east of Enid in Garfield County, on the night of June 22, 1936; that accompanying him were two ladies, one of whom he has since married, and one man by the name of Clint Mitchell. The ladies were in the back seat and the men in the front seat; when at a point about six miles east of the city of Enid they passed a truck going west on said highway in which were Joseph Johnson driver, and Gene Bachelder, the owner of the truck. They collided with the back end of the truck and just after this collision had a head-on collision with a Buick automobile, which was following the truck in a westerly direction. This car was occupied by Dr. H. O. Warrick and his wife who were in the front seat, and John Carey, Joe Felrath and his boy Bobby were in the back seat. They were returning to their home in Enid after attending a Sunday school party at Covington. It was between 10 and 10:30 p. m. Mr. Warrick, after stating the above facts, testified that just before the collision he was driving on the north side of the road and about one hundred feet behind the truck; that he saw a car coming east which was seemingly going from one side of the road to the other, ahead of the truck. Just at this time he heard the noise of the car striking the truck and he attempted to pull his car to the northwest off of the highway but was struck and knocked unconscious. He...