Rheuark v. State

• Decision Date: 05 January 1944
• Docket Number: A-10248.
• Parties: RHEUARK v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

144 P.2d 754

78 Okla.Crim. 121

RHEUARK v. STATE.

No. A-10248.

Court of Criminal Appeals of Oklahoma

January 5, 1944

Syllabus by the Court.

1. Information filed under 47 O.S.A.1941 § 93, charging defendant as a second offender examined, and found to be sufficient as against a general demurrer.

2. Where defendant was charged with the crime of driving a motor vehicle while under the influence of intoxicating liquor, and it was further charged that he had prior thereto been convicted of the same offense, the court did not err in permitting the introduction of the information, the verdict of the jury, and the appearance docket showing the judgment and sentence of the Municipal Criminal Court of the City of Tulsa, of the prior conviction, where these were the only records kept by the court.

3. Where a defendant takes the witness stand and admits the prior conviction and payment of the fine, it cures any error that may have been made as to the introduction of the record as to his former conviction.

4. Where there is a conflict in the testimony, and the evidence is sufficient to sustain the judgment and sentence, this court will not set aside the verdict of the jury on appeal.

5. Record examined, and the judgment and sentence found not to be excessive under the facts.

Appeal from District Court, Tulsa County; Prentiss E. Rowe, Judge.

H. B Rheuark was convicted of driving a motor vehicle while under the influence of intoxicating liquor after previous conviction of a similar offense, and he appeals.

Affirmed.

Harold McArthur, of Tulsa, for plaintiff in error.

Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.

BAREFOOT Judge.

Defendant H. B. Rheuark, was charged in the District Court of Tulsa County with the crime of driving a motor vehicle while under the influence of intoxicating liquor, having been previously convicted in Municipal Criminal Court for driving while under the influence of intoxicating liquor; was tried, convicted and sentenced to serve a term of one year in the State Penitentiary, and has appealed.

The defendant was charged by reason of driving a Ford automobile upon the public streets of the city of Tulsa on August 19 1941, while under the influence of intoxicating liquor. The information also charges that he had been previously convicted in Municipal Criminal Court of the City of Tulsa on June 26, 1941, on a similar charge. On the first charge he was fined $10 and costs, which he paid.

The statute under which defendant was charged is 47 O.S.A.1941 § 93, and is as follows: "It shall be unlawful for any person who is under the influence of intoxicating liquor, *** 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 misdemeanor for the first offense and upon conviction therefor shall be punished by imprisonment in the county jail for a period of time not to exceed one (1) year, or by a fine or not more than Five Hundred ($500.00) Dollars or by both such fine and imprisonment. Any persons found guilty of a second offense under the provisions of this Act shall be deemed guilty of a felony and upon conviction therefor shall be punished by imprisonment in the State Penitentiary for a period of time not to exceed two (2) years, or a fine of not more than One Thousand ($1,000.00) Dollars or by both such fine and imprisonment."

This statute was enacted by the Legislature in 1941, amending Sec. 10324, O.S.1931. The only change was with reference to making the first offense a misdemeanor, and the second a felony. Watts v. State, Okl.Cr. 137 P.2d 268 (not yet printed in State reports).

It is contended by defendant that the court erred in refusing to sustain the demurrer to the information by reason of the allegation as to the second offense. The case of Fowler v. State, 14 Okl.Cr. 316, 170 P. 917, is cited in support of this proposition. A careful reading of this case discloses that it is based upon different allegations and facts than those in the instant case. It has reference to the habitual criminal statute, 21 O.S.A.1941 § 51, while the specific statute above quoted applies here. The language in the information is definite and certain, and fully...