Raper v. State, A-11698

• Citation: 96 Okla.Crim. 18,248 P.2d 267
• Decision Date: 03 September 1952
• Docket Number: No. A-11698,A-11698
• Parties: RAPER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 267

248 P.2d 267

96 Okla.Crim. 18

RAPER v. STATE.

No. A-11698.

Criminal Court of Appeals of Oklahoma.

Sept. 3, 1952.

Syllabus by the Court.

1. The gist of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.

2. 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.

3. Information herein examined and found to be sufficient to withstand demurrer.

4. An important and the primary function of state highway patrolmen is to put forth their best efforts to control and direct traffic on the highways of this state to the end that such highways may be made safe for all persons using such highways for travel.

5. Where on motion to suppress evidence, it is developed that highway patrol officers observed a car being driven along highway swerve and run off on the shoulder of the highway, and swerve back across center line, they were in performance of duty in following and observing such car, and when their further observance indicated that the driver was not operating the vehicle in a normal and safe manner, they were justified in stopping such motorist for questioning.

6. Where in questioning such motorist he is found to have had the odor of whiskey on his breath and otherwise to have shown signs of intoxication, the officers were then justified in searching his car as incident to arrest, and the motion to suppress all evidence obtained from fact of questioning and search, was properly overruled.

7. Where the defense of the motorist is that at the time and place charged he did not drive his car off the highway or across the center line thereof, or in a reckless manner, but at all times drove the same in a careful manner, but that he was stopped by the officers without reason and on mere suspicion, and accused files a verified motion for continuance of trial to a later date during the term or for the term, by reason of absence of a material and only defense witness to facts of arrest, duly subpoenaed, and attached to the motion is affidavit of defendant contravening testimony of officers, and setting out that his eye witness who was riding with him is ill, and attached is affidavit of the attending physician of witness stating that witness is confined to bed because of illness and could not safely attend court for about ten days, and the state made no effort to deny the allegations contained in defendant's motion, it is an abuse of discretion for the court to refuse a continuance for time determined by the court, under the circumstances, to be reasonable.

O. A. Brewer, Hugo, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Ass't Atty. Gen., for defendant in error.

POWELL, Judge.

Chester Vernon Raper, plaintiff in error, who will hereinafter be referred to as defendant, was charged by information filed in the county court of Choctaw County with the crime of operating a motor vehicle while under the influence of intoxicating liquor; was tried before a jury, found guilty and his punishment fixed at a fine of $300. Appeal has been perfected to this court, where for reversal defendant advances and argues four propositions of error, that will be treated in the order presented.

In Proposition I it is set out that the court erred in refusing to sustain the general demurrer to the information by reason of ambiguity and uncertainty of information and variance of proof.

The charging part of the information reads:

'* * * that Chester Vernon Raper, did in Choctaw County, State of Oklahoma, on or about the 15 day of March, 1951, and anterior to the presentment hereof, commit the crime of operating a motor vehicle while under the influence of intoxicating liquor, in the manner and form as follows, to-wit: That he, the said defendant, then and there being, did then and there wilfully, wrongfully, unlawfully drive, operate and propel a certain 1950 Ford Coach automobile from a point unknown to a point on Highway No. 271, 1/2 mile from the west edge of the City of Hugo, Choctaw County, Oklahoma, while he, the said defendant, was under the influence of intoxicating liquor, * * *.'

We feel sure that if the county attorney had given a little more study to the preparation of the information, he could have improved on it. The evidence disclosed that the car was being driven east along Highway No. 271; that the point where the officers claim defendant drove off the highway and caused them to conclude something was wrong, was about one-half mile from the west edge of Hugo. This could have been stated clearer in the information where it is said: '* * * from a point unknown to a point on Highway 271, 1/2 mile from the west edge of the city of Hugo * * *.' But is the defect such as to justify the reversal of this case? The statutory provision involved is Tit. 47 O.S.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, designed, 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 more than one (1) year, or by a fine of not more than Five Hundred Dollars ($500.00) or by both such fine and imprisonment. * * *'

The effect of counsel's argument is to advocate the application to the above statute of the principles developed in the construction of the unlawful transportation of intoxicating liquor statute, Tit. 37 O.S.1951, § 1. But these statutes are so different in language and terms that a casual reading and comparison would veto such thought.

Counsel for the defendant cites Jones v. State, Okl.Cr.App., 229 P.2d 613, 614, as being conclusive of the insufficiency of the information in the within case, and the Attorney General cites it as being conclusive of the sufficiency.

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 in passing on the question raised, 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 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.'

In the within case, different from in the Jones case, it was alleged that the car involved was driven 'to a point on Highway 271, 1/2 mile from the west edge of the City of Hugo * * *.' If the car was driven on the highway at the point alleged the further inquiry suggested by counsel for the defendant as to 'what point' was not an essential element of the crime which required proof. Whether at the edge of the roadbed proper or in the middle is immaterial. For the vehicle to get to a point on the highway would necessitate either driving along the roadbed proper or traversing the shoulder coming in from an angle, or even crossing the highway in order to reach any point on Highway 271 at the location alleged, and would under any circumstances traverse ground open to the public.

It is our conclusion that the information, though far from a model, is sufficient to meet the tests stated in the Jones case as well as in Argo v. State, 88 Okl.Cr. 107, 200 P.2d 449, 450, where we stated in paragraphs one and two of the syllabus:

'The gist of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.

'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.'

It is next contended that the court erred by reason of overruling defendant's motion to suppress the evidence.

It is noted from counsel's argument in brief that he still treats the issue as if the charge involved was that of possession or transportation of intoxicating liquor. The evidence on the motion disclosed that the officers in the first instance stopped defendant by reason of his reckless manner of handling his car, in that he ran off onto the shoulder of the Highway, No. 271, and on getting back on the highway ran...