Oates v. State

• Decision Date: 24 October 1956
• Docket Number: No. A-12274,A-12274
• Citation: 303 P.2d 317
• Parties: Samuel Kinnard OATES, 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 317

303 P.2d 317

Samuel Kinnard OATES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12274.

Criminal Court of Appeals of Oklahoma.

Oct. 24, 1956.

Syllabus by the Court.

1. Where the information has not been challenged by demurrer or motion to quash, the defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled if by any intendment, inference or presumption, it can be sustained.

2. An information or indictment which, construed under the ordinary rules of construction, states all the essential elements of the crime charged sufficiently to enable a person of common understanding to know what is meant, and with sufficient particularity to enable a defendant to prepare for his trial, and to plead the judgment in bar, if again informed against for the same offense, is sufficient.

3. A defendant by availing himself of the privilege of testifying in his own behalf thus waives his constitutional privilege of remaining silent, and has all the rights and is subject to the same rules of cross-examination and impeachment as other witnesses.

4. Alleged error in the giving of an instruction will not be considered on appeal in the absence of an exception saved to the giving of said instruction, unless it is so basically erroneous as to mislead and confuse the jury as to the issues of the case.

5. A jury's determination upon a conflict in the evidence must be controlling on an appellate court, and unless there are errors of law appearing in the record, a jury's finding of guilty will be sustained on appeal where there is competent evidence to sustain such finding.

Appeal from the District Court of Tulsa County; Elmer Adams, Judge.

Samuel Kinnard Oates was convicted of the crime of driving a motor vehicle while intoxicated, second and subsequent offense; sentenced to serve two years in the State Penitentiary and pay a fine of $500, and appeals. Modified and affirmed.

W. C. Henneberry, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

Samuel Kinnard Oates, plaintiff in error, hereinafter referred to as defendant, was charged by information filed in the district court of Tulsa County with the crime of driving a motor vehicle while under the influence of intoxicating liquor, second and subsequent offense, was tried to a jury, convicted and his punishment fixed at confinement in the State Penitentiary for a term of two years, and to pay a fine of $500. Appeal has been properly perfected to this court.

We note that counsel other than trial counsel has filed appellate brief herein. Some nine specifications of error in petition in error are argued together, without separate headings or specifications, as required by Rule 7 of this court, 22 O.S.A. c. 18, Appendix. The Attorney General has combined the specifications of error for convenience into three divisions. We shall treat the issues by an attempt to put first things first.

The sufficiency of the information is attacked. The pertinent portion of the information reads:

'* * * that Samuel Kinnard Oates on the 25th day of November, A.D.1954, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully, wilfully, knowingly and feloniously drive and operate a certain motor vehicle, to-wit: A 1947 Chevrolet automobile, bearing 1954 Oklahoma license number 2-92154 in the 3800 Block [on] North Lewis [street] in [Tulsa,] Tulsa County, Oklahoma, while under the influence of intoxicating liquor.' (Italicized words supplied.)

It is at once noticeable that following the phrase 'in the 3800 Block' the word 'on' should have been added for clarity. And the word 'street' following the words 'North Lewis', should have been added for the same reason. Also the word 'Tulsa' should have been added just preceding 'Tulsa County, Oklahoma.'

The question now arises as to whether the omission by the county attorney of the three words suggested and that we have italicized and added by brackets in the information quoted above, constituted omissions that made the information not only defective, but fatally defective.

The record discloses that the sufficiency of the information was never attacked or questioned at any time in the trial court, or even in petition in error, but the attack appears for the first time in defendant's brief. It would have been a simple matter for the court to have permitted the county attorney to amend the information instanter, by inserting the three words suggested, by interlineation. Apparently neither defendant nor counsel had any doubt as to what the language of the information meant. In fact, on trial the defendant affirmed the route of travel alleged, and did not deny any allegation of the information except that he contended he was not drunk. Nevertheless, if the information failed to charge a crime, that would mean that a fundamental right had been violated and the point could be raised for the first time on appeal. Gibbons v. Territory, 5 Okl.Cr. 212, 115 P. 129; Wingfield v. State, 81 Okl.Cr. 146, 160 P.2d 945.

As a guide for testing the sufficiency of the information in question, we find in Phillips v. State, 267 P.2d 167, 168, where this court said:

'Where the information has not been challenged by demurrer or motion to quash, the defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled if by any intendment, inference or presumption, it can be sustained.

'An information or indictment which, construed under the ordinary rules of construction, states all the essential elements of the crime charged sufficiently to enable a person of common understanding to know what is meant, and with sufficient particularity to enable a defendant to prepare for his trial, and to plead the judgment in bar, if again informed against for the same offense, is sufficient.

See also Monahan v. State, 95 Okl.Cr. 234, 243 P.2d 744, and Slater v. State, Okl.Cr., 296 P.2d 193. And see Argo v. State, 88 Okl.Cr. 107, 200 P.2d 449, 450, where we said in paragraph two of the syllabus:

'An information that informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.'

From this it would appear that an information concededly defective and where the trial court might properly have sustained a demurrer or required amendment, if the question in some manner had been raised during the course of a trial, would, where not raised be by the appellate court upheld if violence is not done to recognized rules of construction.

Again, can the information, then, that we have quoted be upheld?

The statutory provision involved is 47 O.S.A.1951 § 93, and reads in part:

'It shall be unlawful for any person who is under the influence of intoxicating liquor * * * to operate or drive a motor vehicle on any thoroughfare, highway, county road, state highway or state road, public street, avenue, public park, driveway, public square or place, bridge, viaduct, trestle or any thoroughfare or structure, public or private, designated, intended or used by or for the general public for travel or traffic or the passage of vehicles within this State and any person violating the provisions of this Section shall be deemed guilty of a misdemeanor for the first offense and upon conviction therefor shall be punished by imprisonment in the County Jail for a period of time not less than ten (10) days or more than one (1) year, or a fine of not more than Five Hundred Dollars ($500.00) or by both such fine and imprisonment * * *.'

What would be a reasonable interpretation of the meaning of the language of the charge that defendant did drive a described automobile 'in the 3800 Block, North Lewis, in Tulsa County, Oklahoma while under the influence of intoxicating liquor'? What was meant?

Present counsel for the defendant asserts, in effect, that the term 'in the 3800 Block North Lewis' fails to describe a specific point on a public highway where the car was driven; that the car might have been driven at any number of points not a place of travel at all. It is said that any doubt as to the issue as to the sufficiency of the information has been settled by the case of Jones v. State, 94 Okl.Cr. 15, 229 P.2d 613, 614.

In the Jones case the defendant was charged with driving a described motor vehicle while under the influence of intoxicating liquor: "From a point 135 feet South of the intersection of Choctaw and Broadway Streets in the City of Marlow, Oklahoma, at which point he was involved in a property damage accident [case]".

This court through Jones, J., in the body of the opinion stated:

'The word highway is not mentioned anywhere in the information and there are no facts alleged by which this court could reasonably infer that the defendant was driving the automobile on a highway. Even in the caption the crime is designated 'driving an automobile while under the influence of intoxicating liquor'. * * * The information does not allege that such a point is on a street of the City of Marlow and does not allege any point to which the automobile was driven. As pointed out by counsel for the defendant, there was nothing in the information to show that the spot where the car was allegedly driven was not on private property or even in the private driveway of some residence not used by the general public.'

The writer concurred in that opinion. Probably what was meant in that case was that the car was driven to the intersection of Choctaw and Broadway Streets in the city of Marlow, Oklahoma, from a point 135 feet south thereof and at said intersection defendant was involved in a property damage...