Stevison v. State, A--14671

• Decision Date: 08 January 1969
• Docket Number: No. A--14671,A--14671
• Citation: 449 P.2d 916
• Parties: Wellington Gernade STEVISON, 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 916

449 P.2d 916

Wellington Gernade STEVISON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14671.

Court of Criminal Appeals of Oklahoma.

Jan. 8, 1969.

Rehearing Denied Feb. 14, 1969.

Syllabus by the Court

1. No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense. Article 2, § 21, Oklahoma Constitution.

2. When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the same offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information. 22 O.S. § 522.

3. It is unlawful and punishable for any person who is under the influence of intoxicating liquor to drive, operate, or be in actual physical control of any motor vehicle within this state.

4. Any person who shall, in any public place, or in or upon any passenger coach, street car, or in or upon any other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, waiting station, or room, drink any intoxicating liquor of any kind, or if any person shall be drunk or intoxicated in any public or private road, or in any passenger coach, street car, or any public place or building, or at any public gathering or if any person shall be drunk or intoxicated and shall disturb the peace of any person, he shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than ten dollars, nor more than one hundred dollars, or by imprisonment for not less than five days nor more than thirty days, or by both such fine and imprisonment. 37 O.S. § 8.

5. The constitutional provision relating to former jeopardy barred only a prosecution for the same offense, while the provisions of 22 O.S. § 522, broaden the constitutional provision and provides that an acquittal or conviction of any included offense, or attempt to commit the offense, bars a subsequent prosecution for the greater offense.

6. A plea of guilty to a charge of Public Drunkenness does not bar a subsequent prosecution for the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, subsequent offense, arriving out of the same transaction.

Appeal from the Superior Court, Garfield County; Geo. Howard Wilson, Judge.

Wellington Gernade Stevison was convicted for the crime of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, subsequent offense, was sentenced to serve two and one-half years in the State Penitentiary, and appeals. Affirmed.

James I. Maxwell, Enid, for plaintiff in error.

Virgil Ball, Dist. Atty., Wesley R. McClanahan, Asst. Dist. Atty., Garfield County, for defendant in error.

BUSSEY, Judge.

Wellington Gernade Stevison, hereinafter referred to as defendant, was charged by Information in the Superior Court of Garfield County, Oklahoma, with the crime of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, subsequent offense.

The defendant appeared before the court on August 19, 1967, for arraignment, at which time he waived the reading of the Information, stating that a preliminary hearing had been conducted prior thereto, and on the same day, entered a plea of not guilty. On September 14, 1967, the case was called for jury trial, at which time both the defendant and the State waived a jury. After jury was waived by both parties, the defendant, through his attorney, announced that he entered a plea of former jeopardy. Upon inquiry from the court as to what was the basis of the plea of former jeopardy, counsel for the defendant announced that on December 27, 1966, in the County Court of Garfield County, Case No. 9991, the defendant had entered a plea of guilty to a charge of public drunk, received therefor a fine of $25.00 and costs, which charge arose out of the same incident under which he is charged in the present case.

The Assistant District Attorney and the defense counsel thereupon engaged in an argument before the court as to whether or not a conviction for public drunk would bar a subsequent trial and conviction for driving under the influence of intoxicating liquor, subsequent offense, where both charges grew out of the same incident. At the conclusion of this argument, the court had this to say at pages 17--18 of the Casemade:

'All right, gentlemen. I feel, and I believe, and I think it is sound, and we have treated it through the years as such, that public drunk or just plain drunk, are misdemeanor charges, and are not a lesser included offense in the charge of DWI, operating an automobile while under the influence of intoxicating beverages. It is true that you may have a DWI charge; as well as a public drunk charge, which is a misdemeanor, but is not a lesser included offense.

Let me further state what the public position is in this. That the applicability of available prosecution to curb unnecessary fatalities on our highways to meet the current challenge of today to put to a stop the high rate of traffic fatalities, many of which grow out of drunkenness and operating a vehicle under the influence of intoxicating beverages.

For all of these reasons, as well as some others that we mentioned, I believe that the plea of double jeopardy in this type of case, under the Oklahoma law, is not well taken, meaning that I must enter a ruling against such a plea and deny the same.'

This ruling was excepted to by the defendant.

Thereafter the respective parties stipulated to the facts giving rise to the charge and to the prior convictions of the defendant, and the court summarized the same at pages 21--22 of the casemade in the following language:

'I have before me then the set of circumstances and facts that you have agreed to, and the man plead guilty to a public drunk charge and then was also charged with driving while under the influence of intoxicating liquor, and that he was driving a vehicle and was in control thereof.

The element of the charge of DWI has been shown, and the Court is going to find him guilty of the offense as charged on the first page of the Information. Likewise, you stipulated that the three prior convictions, as shown on the second page of the Information, are true and correct. Briefly they are: On August 8, 1952 the defendant entered a plea of guilty in the County Court to DWI, first offense, and was given a sentence of 20 days in the County Jail and received a fine of $150.00.

The second one was on the 7th day of February, 1956, the defendant appeared in this Court, the Superior Court, and appeared before me, Judge Geo. Howard Wilson, in Case No. 291, and entered a plea of guilty to the charge of DWI, Second Offense, and the defendant was sentenced to two years in the State Penitentiary; however, the sentence at that time was suspended, and if my recollection serves me right, he did not spend any time in the penitentiary.

Then the third case was in the District Court, Case No. 3285, and that case was tried before a jury, and he was found guilty and sentenced to one year in the State Penitentiary of which the defendant just informed me that he served seven months and one day of that sentence in the penitentiary.

Now, I was advised in open court back in August, when we were setting this for jury trial, and in the event that this case would come to trial, either before the Court or before the jury, that these prior convictions, as stated in the Information, on the second page, and true and correct; and we now have also the stipulation to that effect.

Therefore, the Court finds that the charge of DWI is proven by the record and the stipulations, and accordingly, finds the defendant Wellington Gernade Stevison, guilty as charged in the Information with the offense of DWI,...