Toms v. State

• Decision Date: 02 January 1952
• Docket Number: No. A-11511,A-11511
• Citation: 95 Okla.Crim. 60,239 P.2d 812
• Parties: TOMS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 812

239 P.2d 812

95 Okla.Crim. 60

TOMS v. STATE.

No. A-11511.

Criminal Court of Appeals of Oklahoma.

Jan. 2, 1952.

Syllabus by the Court.

1. The Criminal Court of Appeals is reluctant to dismiss appeals in criminal cases, and will not do so on technicalities.

2. Before the Criminal Court of Appeals can reverse a case for insufficiency of evidence, there must be no competent evidence in the record upon which the verdict could be based.

3. Expert testimony is admissible where the conclusions to be drawn by the jury depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of man to speak with authority thereof, and in those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts but the conclusions to which they lead, may be testified to by qualified experts.

4. The law makes no distinction in weighing evidence between expert testimony and evidence of other character, and it is for the jury and not the reviewing court to determine the weight to be given such evidence.

5. In a drunk driving case where drunkometer breath and urine tests are consented to voluntarily, the alcoholic content of both an accused's breath and his urine was a matter not within the ordinary training or intelligence of the average juror, hence not only the facts, but the conclusions in relation thereto, were matters of professional or scientific knowledge or skill, concerning which qualified experts are permitted to give testimony.

6. In a prosecution for driving an automobile while intoxicated, where the accused voluntarily consented to drunkometer and urine tests, and experts for the state testified the tests were accurate, objection to their testimony only went to its weight and not to its admissibility, but the trial court in such case should instruct the jury that such expert testimony is not conclusive and is admitted only to be accorded such weight as the jury may think it is worth.

7. The Criminal Court of Appeals is without power to recognize and adopt scientific methods for general use in crime detection, since such recognition subject to constitutional limitations, is a matter within the exercise of legislative power.

8. When a photograph is shown to be a faithful reproduction of whatever it purports to reproduce, it is admissible in evidence, as an appropriate aid to the jury in applying the evidence and this is equally true whether it relates to persons, things, or places.

Landrith & Friel, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

Plaintiff in error, Daniel H. Toms, defendant below was charged in the Municipal Court of the City of Tulsa, Oklahoma, by information with the offense of driving his automobile while drunk, on or about April 8, 1950, at a 'point in 31st and Lewis Streets in the city of Tulsa, Oklahoma', the same being a public highway, all of which, it was alleged, he did in violation of § 93, Title 47 O.S.1941. The defendant was tried by a jury while found him guilty but left the punishment to be fixed by the trial court. The trial court entered judgment and sentence on July 15, 1950 fixing the penalty at 60 days in the county jail and a fine of $150.00. Motion for new trial was overruled on said date, and judgment and sentence entered accordingly. Notice of intention to appeal was made as by law provided, and the trial court entered its order extending time to perfect appeal 30 days, to make and serve case-made. Thereafter on August 14, 1950 an order further extending time to make and serve case-made was entered extending time therefor for 30 days. On September 13, 1950 the trial court entered an order extending time 60 days to 'make and serve case-made on appeal to the Criminal Court of Appeals'. This order was made on the 60th day from the entry of judgment and sentence. Thereafter on October 13, 1950, an order was made and entered extending time to 60 days from September 13, 1950 'in which to file an appeal to the Criminal Court of Appeals of the State of Oklahoma'. The appeal was lodged herein on November 8, 1950. On this state of the record the state filed its motion to dismiss contending that, the order of September 13, 1950 did not extend the time for filing of the appeal, and therefore the order dated October 13, was a nullity. This court has repeatedly held, the Criminal Court of Appeals is reluctant to dismiss appeals in criminal cases and will not do so on technicalities. Lewis v. State, Okl.Cr.App., 211 P.2d 295, not yet reported in State reports; Cruse v. State, 86 Okl.Cr. 83, 187 P.2d 235, 236. It is apparent from the record that the trial court's orders extending time were all made and entered at such time, as allowed by law or lawful extension thereof, and was sufficient to continue the trial court's jurisdiction. The state attempts to assert, however, the trial court lost jurisdiction in its order of September 13, 1950 by use of the term 'on appeal' which it contends was indicative of a lack of jurisdiction and indicated the case was already on appeal and no longer within the jurisdiction of the trial court. We are of the opinion, the expression 'on appeal' is so inconsistent with the clearly expressed intent of the trial court to retain jurisdiction and extend time as to indicate, that the expression 'on appeal' was an unconscious or typographical error. Where the trial court does an act indicative of clear intention to relinquish or extinguish jurisdiction, its jurisdiction will cease, but such intention must be clear, and inconsistent with intention to retain jurisdiction. More specifically, the appeal will not be dismissed because of the technical or erroneous use of language employed in an order extending time, making it appear jurisdiction had already passed to the appellate court, where the intent of the trial court to retain jurisdiction, within the time allowed by law, can otherwise be clearly ascertained by its acts and expressions inconsistent with intent to relinquish jurisdiction. We are of the opinion that the orders of the trial court extending time herein were sufficient to continue jurisdiction in the trial court, even though its use of the term 'on appeal' was not technically correct. Moreover, it is apparent to us, that the order of September 13, reading 'in which to make and serve case-made on appeal to the Criminal Court of Appeals' was intended to read, 'and appeal to the Criminal Court of Appeals'. The order of October 13 extending time from September 13, 1950 for 60 days from September 13 was intended to, and did, clarify the trial court's intention in its order of September 13, 1950. The state's contention in this regard is highly technical and will therefore be overruled.

The facts in the case are not complicated. They are substantially as hereinafter related. The defendant, a resident of Jenks, Oklahoma, admits that he and his brother Bennie, whom he had not seen for a long time, had drunk one glass of 3.2 beer and 3 glasses or bottles of beer from 11:30 A. M., until about 3:30 P. M. He admitted he was driving his 2-door 1949 Ford automobile north on Lewis Street and collided his car with a Nash automobile being driven in an eastwardly direction, which ran a stop line at the west intersection of Lewis and 31st Streets in Tulsa, Oklahoma, at about 3:35 P.M., on April 8, 1950. The information alleged that the defendant was intoxicated and in such condition was driving his automobile, colliding the same with the Nash automobile. The collision was with such force, as to seriously damage the two automobiles and injure a woman occupant of the Nash automobile. The state's proof in relation to the time of the collision and occurrences preceding and following it was as follows. John Engler, a photographer, identified state's exhibits No. 1 and 2, as pictures of the intersection at Lewis and 31st streets, taken immediately following the collision and disclosing skidmarks. They were admitted, over the defendant's objection.

Mr. Bruce Collier and Earl Peterson testified that about one-half or one-fourth of a mile on Lewis Street from 31st street south of the intersection, a maroon Ford car driven by a man in a blue shirt with a male passenger passed him, going north at an estimated speed of 60 miles per hour, that the Ford car veered from side to side and his rear left wheels went off of the pavement a few minutes later. They testified they saw the defendant at the intersection of 31st and Lewis Streets and the defendant's car was practically demolished. The defendant's car was maroon in color, and he was wearing a blue shirt. Moreover, the record does not disclose, any other such car or driver passed them in the interim between the time it was first seen and when they arrived at the collision. Furthermore the state's case disclosed, that there was a clearance view to the left of the defendant's left as he approached the intersection of Lewis and 31st streets of 360 feet, that the defendant in applying his brakes left skidmarks on the pavement of 196 feet to the point of impact with the Nash car.

Mr. I. H. Van Horn, Police Officer Murray Smith and Police Officer Ed Erwin who investigated the collision immediately thereafter, all testified that the defendant had been drinking. These officers testified that the defendant's speech was thick and the defendant was wobbly or staggered.

Mr. M. T. Hill, Traffic Officer of the Tulsa Police Department, testified that the defendant had a moderate odor of alcohol on his breath and it smelled like bay rum. He testified that he had a normal color but his eyes were bloodshot and he swayed. Though his speech was fairly good and his tongue was not thick and ...