Palmer v. State, A-12606

• Decision Date: 09 July 1958
• Docket Number: No. A-12606,A-12606
• Parties: Lonnie C. PALMER, 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 722

327 P.2d 722

Lonnie C. PALMER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12606.

Criminal Court of Appeals of Oklahoma.

July 9, 1958.

Syllabus by the Court

1. While by 22 O.S.1951 § 916, the jury may find the accused guilty of any offense, the commission of which is necessarily included in that with which he is charged, or an attempt to commit the offense, it is unnecessary to instruct the jury as to an included offense when the facts do not justify.

2. Where defendant is charged by information with an alleged violation of 47 O.S.1951 § 121.2, paragraphs (a), (b), and (d), quoted in the opinion, a felony charge, and the proof showed an incidental violation of sub-paragraph (c) of said § 121.2, a misdemeanor, also quoted in the opinion, and where the state made out a prima facie case of guilt of the felony, and the defendant did not testify or offer any evidence to refute the felony charge, Held, that the court did not err in refusing to submit to the jury an instruction that would have permitted the jury to find the defendant not guilty of the felony charge, but guilty of the misdemeanor.

3. Record examined and found not to justify this court in modifying the penalty assessed by the trial court.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Lonnie C. Palmer was convicted of the offense of leaving the scene of an accident in violation of 47 O.S.1951 § 121.2(d), and appeals. Affirmed.

Harold McArthur, Tulsa, for plaintiff in error.

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

POWELL, Judge.

Lonnie C. Palmer was convicted in the district court of Tulsa county on a charge of leaving the scene of an accident that resulted in personal injury without giving to the person injured the necessary information required by 47 O.S.1951 § 121.2(d). The jury returned a verdict finding the defendant guilty, as charged in the information, but being unable to agree upon the punishment to be assessed, left that to the court, who fixed penalty at 90 days confinement in the State Penitentiary at McAlester and a fine of $100 and costs.

It was alleged in the information that the offense occurred on July 21, 1957 in Tulsa County. The charging part reads:

'That said defendant, Lonnie C. Palmer, while driving a 1945 Dodge truck, bearing 1957 Oklahoma license number 137T572, collided with and struck a 1953 Ford automobile, bearing 1957 Oklahoma license Number 2-64-638, driven by and under the control of Jerry Wayne Baker; that said accident occurred at a point .3 mile west of Tulsa on United States Highway No. 64, that as a result of said accident, one Jerry Wayne Baker received injuries, to-wit: chest injuries and leg injuries, and that the said Lonnie C. Palmer did not stop his vehicle at said time and place, nor did he give his correct name and address, the registration number of the vehicle he was driving, nor did he exhibit his driver's license or other valid evidence of identification to the person driving said vehicle, but said Lonnie C. Palmer continued to drive his vehicle until he was apprehended near Sand Springs in Tulsa County, Oklahoma; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.'

The crime charged in the information is based upon an alleged violation of 47 O.S.1951 § 121.2, sub. paragraphs (a), (b) and (d), wherein it is provided:

'(a) The driver of any vehicle involved in an accident resulting in injury to, or death of, any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until he has fulfilled the requirements of paragraph (d). Every such stop shall be made without obstructing traffic more than is necessary.

'(b) Any person wilfully, maliciously, or feloniously failing to stop, or to comply with said requirements under such circumstances, shall be guilty of a felony, upon conviction thereof, be punished by imprisonment for not less than ten (10) days nor more than one (1) year, and by a fine of not less than fifty dollars (50.00), nor more than one thousand dollars ($1,000.00) or by both such fine and imprisonment. * * *

'(d) The driver of any vehicle involved in an accident shall give his correct name and address, and the registration number of the vehicle he is driving; and shall exhibit his operator's or chauffeur's license to the person struck, or the driver, or occupant of, or person attending any vehicle collided with and shall render to any person injured in such accident reasonable assistance. If the driver does not have an operator's or chauffeur's license in his possession he shall exhibit other valid evidence of identification to the occupants of a vehicle, or to the person collided with.'

In connection with the above statute (47 O.S.1951 § 121.2) attention is called to the provisions of paragraph (c) of the title and section, which reads:

'(c) The driver of any vehicle involved in an accident resulting only in damage to a vehicle, which is driven or attended by any person, shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible, and shall forthwith return to, and in every event shall remain at the scene of such accident, until he has fulfilled the requirements of paragraph (d). Every such stop shall be made without obstructing traffic more than is necessary.'

It is specifically provided in the last unlettered subparagraph of said Section 121.2:

'It shall be deemed a misdemeanor and punishable by a fine of not more than fifty dollars ($50.00) for the conviction of any person for failure to comply with the requirements of paragraphs (c), * * *.'

Reversal of the conviction is sought by reason of the refusal of the court to submit to the jury the issue of leaving the scene of an accident where property damage was involved, and failure to give the requested instruction covering such theory. It is argued that had such issue been submitted the defendant would not have been convicted of the felony charge, sub-paragraphs (a) and (b), supra, but would have been convicted of the misdemeanor, subparagraph (c) supra, which it is urged is an included offense.

Counsel says that he has been unable to find where this court has interpreted the statute in question (and quoted above), but he argues that by the provisions of 22 O.S.1951 § 916, it is provided:

'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.'

Counsel argues that the above statute has been cited many times, and held applicable in cases involving homicide, arson, rape, grand larceny and various assault cases, and cites in illustration the cases of Inklebarger v. State, 8 Okl.Cr. 316, 127 P. 707; Ex parte Wills, 12 Okl.Cr. 596, 148 P. 1069; Suitor v. State, 6 Okl.Cr. 305, 118 P. 412; Thoreson v. State, 69 Okl.Cr. 128, 100 P.2d 896. We find no fault with these cases.

Of course most motor vehicle accidents involve only damages to the vehicle or other property. And counsel for the State argues that under the provisions of 47 O.S.1951 § 121.2, subdivisions (a), (b), and (d) the felony charge of leaving the scene of an accident resulting in personal injuries or death, without stopping and fulfilling the requirements of paragraph (d) of the statute, is a separate and distinct offense from that leaving the scene of an accident resulting in damages to vehicle, which is driven or attended by any person; without stopping and fulfilling the requirements of paragraph (d) of the statute, a misdemeanor.

Of course, as we have seen from the wording of the information above quoted, it charged the defendant with the specific offense of leaving the scene of an accident resulting in personal injury to the person driving the Ford car. It is said that the evidence disclosing property damage; that is, damage to the car, was simply incidental. Nevertheless, we must recognize that where there are vehicles involved, as distinguished from a vehicle and a pedestrian or pedestrians, in order for there to be injury to the person there would almost invariably be injury to the vehicle. And we can visualize many instances where there would arise a question of fact as to whether the complainant was actually injured where there were no signs visible to the casual observer, though admittedly there would be damage to his vehicle. We would then have a question for determination of the jury. Now should the jury determine that there was no personal injury would it be precluded from settling all matters incidentally involved, or should there be a multiplicity of actions involving the same device? Such should not be favored where the statutory provisions are not clear and specific that the same facts may form the basis for separate prosecutions of more than one crime. ¹ We think of no good reason why the matters may not be determined in one action, though in this particular case this is, strictly speaking, simply by way of argument, for here the defendant did not testify or offer any evidence to...