Sanders v. State

• Decision Date: 13 July 1955
• Docket Number: No. A-12158,A-12158
• Citation: 287 P.2d 458
• Parties: Zora Lucy SANDERS, 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 458

287 P.2d 458

Zora Lucy SANDERS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12158.

Criminal Court of Appeals of Oklahoma.

July 13, 1955.

Rehearing Denied Sept. 14, 1955.

Syllabus by the Court.

1. Defendant in criminal case may waive any right, not inalienable, given him by statute or Constitution, which can be relinquished without affecting the rights of others, and without detriment to community at large; and such waiver may be made either by express agreement or by conduct, or by failure to insist upon right in seasonable time.

2. Objection to the reception of evidence obtained by an arrest and invasion of one's residence, all claimed to have been without authority of law and illegal, to be available must be timely.

3. An instruction that would have been correct had timely objection been interposed to the evidence complained of was properly refused where timely objection not made.

4. It is not error to refuse to give a requested instruction where the substance of such requested instruction is included in the instructions which are given.

5. Where the evidence discloses that an offense was committed by a wife in the presence of her husband, and it is apparent from all the evidence that the freely, the under any subjection, but acted freely, the inference of subjection arising from the fact of coverture is rebutted. Tit. 21 O.S.1951 §§ 157, 159.

6. Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the same and determine the facts.

Appeal from County Court of Payne County; Max E. Sater, Judge.

Zora Lucy Sanders was convicted of the offense of driving a motor vehicle while under the influence of intoxicating liquor, and appeals. Affirmed.

Walter Mathews, Cushing, for plaintiff in error.

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

POWELL, Judge.

The plaintiff in error, hereinafter referred to as defendant, was charged by information filed in the county court of Payne County in case No. 8386 with the offense of leaving the scene of a collision; and also charged in the same court in case No. 8387 with the offense of operating a motor vehicle while under the influence of intoxicating liquor, being misdemeanors, and arising out of the same state of facts. By stipulation the two cases were consolidated and tried together before a jury, resulting in a verdict of not guilty in case No. 8386, but in a verdict of guilty in case No. 8387, with punishment left to the court, the jury being unable to agree. The trial court fixed punishment at a fine of $100.

The argument of counsel on appeal that the action of the jury in finding the defendant not guilty of leaving the scene of a collision had the effect of determining that it was not defendant's vehicle that was involved in the accident, and not the defendant's car that was observed by the prosecuting witness, Thomas Everett Oslborne, and not the vehicle that was followed by him after he had turned his automobile around and followed defendant's car into Cushing, is not tenable. This for the reason that the jury may have concluded, and probably did, that although it was defendant's car that side-swiped that of the prosecuting witness, the concussion was so slight, as demonstrated by the fact that it was not sufficient to even dent the fender but only scraped the paint, that the defendant was not aware of any collision.

The prosecuting witness, Thomas Everett Osborne, testified that after closing a picture show in Stillwater, where he was employed, following a Saturday night preview, that he and one Lem Picquette left Stillwater shortly after midnight on May 2, 1954, in the automobile of witness, enroute to Drumright. That about a mile or a mile and a half or two miles west of Drumright, while traveling east on Highway No. 33, they met a car traveling in a westerly direction toward Cushing. That although witness concluded that the approaching car, by reason of it being driven from one side of the road to the other, endangered him, and although witness in effort to avoid a collision drove partially off the road, that the approaching vehicle brushed his car slightly on the left rear fender and scratched it. The damage was negligible.

Witness testified that he proceeded to where he could turn around and then commenced to follow the car that scraped his car. That his companion Picquette took down the license number and that he kept honking his horn and flashing his lights in an attempt to get the car ahead of him to stop, but without success, so that he followed the car in question into Cushing. He further stated that he could tell that it was a woman who was driving the car, and that she had a man companion in the car. That the car turned into a side street and entered a park and witness followed and observed the man and woman get out, walk down in front of a house near the park gate and sit down on a bench in front of the house, and witness drove into the park and observed the man and woman enter the house. Thereafter witness and Picquette drove to the police station in Cushing and advised two police officers that they had observed a car being driven on the highway from one side of the road to the other, and that it had side-swiped a fender sufficiently to scratch it, and that there were a number of near collisions with other motor vehicles.

Osborne, Picquette and the two policemen went to the home where Osborne testified he had seen the man and woman enter. They knocked and Charles Sanders came to the door and admitted them. They made inquiries as to his wife, and found that she had retired in a room opening into the living room. Osborne and the officers said that the wife, the defendant, had gone to bed fully dressed, though the evidence of the defense showed that she had on a night gown and had to dress with the officers present, though they turned their backs. The officers, from observation of defendant, concluded that she was intoxicated and asked her to accompany them to the police station. They testified that defendant had a strong odor of alcohol on her breath, that she was wobbly on her feet and that 'she was not ready to fall down, but the police helped her to get out of the house into the police car and to the police station.' It was the conclusion of witness Osborne and the police officers that defendant and her husband were both drunk.

O. O. Rowden, Cushing policeman, testified that he observed when they first arrived at defendant's home that the car in question was parked in a ditch 50 to 75 feet north of the Sanders residence. Said he:

'A. We went on to the house and knocked on the door. Mr. Sanders said, 'Come in'. We went in and asked about the hit and run accident. We asked if they would go to the police station and talk to the patrolman. Since it happened out of town, it was none of our business. It was the patrol's business. They agreed to go to the station with us.

'Q. Was there any threat or intimidation on them to go, or was it a request? A. Only a request.

'Q. Was there any hesitation on the part of either Mr. and Mrs. Sanders to go with you? A. No, sir.'

Herb Carpenter, the other policeman, testified to going to defendant's home. He stated:

'Q. What was said by you or by Mr. Rowden or anyone there, and what was said by Mr. and Mrs. Sanders? A. Rowden asked them if they would go to the police station and talk to the patrol and make some arrangements on this accident. They voluntarily went.

'Q. Did you all go to the police station? A. Yes.'

The officers admitted that they did not have a warrant for the arrest of either the defendant or her husband, and the evidence failed to show that an arrest was attempted by the prosecuting witness of the man and woman he saw get out of the car he had been following, see Tit. 22 O.S.1951 §§ 187, subd. 3, 202-205, or that he got close enough to them to smell the breath of the defendant prior to the time witness returned and entered her home with the officers. There was no evidence even to show any irregularity in the conduct of defendant and her husband after getting out of the car and prior to entering their home that would be indicative of intoxication.

The police officers claimed that at no time did they tell the defendant or her husband that they were under arrest.

Carl Pugh, a highway patrolman stationed at Cushing, testified that he was at home in bed, and on the morning of Sunday, May 2 he received a call from the desk sergeant at the Cushing police station. He arrived at the station at approximately 2:15 A.M. Mr. and Mrs. Sanders, the two young men and the two police officers were there when he arrived. They were in the radio room. He observed Mrs. Sanders' condition that morning, that her faculties were impaired and she was, in his opinion, under the influence of some form of intoxicant. He concluded that she was drunk and for such reason he placed her in jail. He said that in his opinion the husband was also drunk.

The defendant in her own behalf testified that on the night in question she left Drumright at 11:55 P.M. and drove her car straight to Cushing to her home; that she had attended an American Legion dance and after it was over there was a long string of cars going westward, several in front and several behind her; that she never heard or saw her car come in contact with any other car; that due to a lot of loose dirt in the drainage ditch in front of her house, which was situated on a half lot only, she did park it in the street in front of a neighbor's home; that after she arrived home she undressed and went to bed; that afterwards two police officers, accompanied by two other men, came to her home and told her that she and her husband had to go to the police station. She further testified that she had drunk no intoxicating beverage that night, but had taken liquid medicine, prescribed by her physician just before...