Williams v. State, A-11775

• Citation: 263 P.2d 527,97 Okla.Crim. 229
• Decision Date: 02 September 1953
• Docket Number: No. A-11775,A-11775
• Parties: WILLIAMS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 527

263 P.2d 527

97 Okla.Crim. 229

WILLIAMS v. STATE.

No. A-11775.

Criminal Court of Appeals of Oklahoma.

Sept. 2, 1953.

Rehearing Denied Sept. 30, 1953.

Syllabus by the Court.

1. Where the defendant in a criminal case is charged with first-degree manslaughter for taking the life of another as the result of a collision and occurring while in the commission of a misdemeanor, to wit, driving a motor vehicle on the highway while in an intoxicated condition, the finding of a bottle that had contained whiskey just outside the left-hand door of the defendant's car is a circumstance that may be considered by the jury, as a part of the res gestae, together with the other evidence of intoxication, a short time before the collision and resulting death.

2. Where there is competent evidence in the record from which the jury could reasonably conclude the defendant was guilty as charged, this court will not interfere with the verdict even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom since it is the exclusive province of the jury to weigh the evidence and determine the facts.

3. A person may be found guilty of criminal homicide arising from the negligent operation of an automobile or its use for an unlawful purpose, or in violation of law, but it must be shown that such negligent operation, or use for an unlawful purpose or in violation of law, was the direct and proximate cause of the death.

4. Proximate cause need not be shown by direct testimony; it may be determined from the circumstances in the case.

5. In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury can reasonably conclude that the accused is guilty as charged.

6. Where there is evidence, although entirely circumstantial, from which the jury may reasonably and logically find a defendant guilty, the weight, credibility, and probative effect of such evidence is for the jury, and this court will not disturb its verdict for insufficiency.

John L. Ward, Jr., Tulsa, Wallace & Wallace, Miami, for plaintiff in error.

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

BRETT, Justice.

The plaintiff in error James Elmer Williams, defendant below, was charged by information in the district court of Tulsa county, Oklahoma, with the crime of first-degree manslaughter. In said information it was alleged that the defendant took the life of James Marion Updike while engaged in the commission of a misdemeanor in that he drove his automobile while under the influence of intoxicating liquor without keeping to the right of the center of the highway, and did drive his automobile into the Updike automobile and as a result of the collision therewith, did inflict mortal wounds on James Marion Updike from which wounds he died. All the things alleged occurred in Tulsa county, Oklahoma, on the highway 2.6 miles sought of the city limits of Tulsa, Oklahoma. The defendant was tried by a jury, convicted, his punishment fixed at three years in the penitentiary and judgment and sentence entered accordingly, from which this appeal has been perfected.

The record herein discloses, that other than the occupants of the automobiles, the adult survivors of which were unconscious, there were no eye-witnesses to the collision between the defendant's automobile and that of the Updike automobile. It appears that prior to the fatal incident herein involved the defendant on June 15, 1951 at about 5:00 A.M., picked up Leo Hardesty in Sand Springs, who was employed at the Wonder Bread Company in Tulsa. Hardesty related he was given a ride to the bakery by the defendant, that the defendant drove from one side of the road to the other, and one time a bus had to stop for Dr. Williams to avoid a collision with Williams' automobile. He later testified that the doctor drove on the left side of the road much of the time. Hardesty related that Dr. Williams, whom he identified, drove about 15 miles per hour. He stated that the doctor told him he was a little bit tight, and he would let Hardesty out any time he wanted out. He further testified that Dr. Williams offered him a drink of whiskey out of a bottle he had laying on the front seat. He said that Dr. Williams inquired about a filling station since he was about out of gas, and the doctor told him he was going to Oilton, Oklahoma. He identified the car Dr. Williams was driving as a 1950 Pontiac two-tone in color.

Truman Donohoe, truck driver for Earl Bray Company, testified that he picked up a load of gasoline at a refinery and left about 5:00 A.M., that a car, driving very close to him, had passed him when he went through Red Fork. It was a two-tone Pontiac, he testified. He related that it swerved back and forth across the center line on the pavement. Donohoe said he was driving the gasoline truck about 25 miles per hour. He came upon the scene of the collision, and observed the two-tone Pontiac, which looked like the automobile he had seen.

Mrs. James Updike testified that James Marion Updike was her husband, that together with their son, on the morning of June 15, 1951 with Updike's mother, at about 5:30 A.M. they left Sapulpa going to Tulsa. She stated it was raining that morning, and she was riding in the front seat beside her husband with the son in the middle between them, and her husband's mother in the back. She admitted she was not observing the traffic, but that her husband was driving about 45 miles an hour and on the right side of the road, that a collision occurred, rendering her unconscious. When she regained consciousness, she observed their car with its back bumper against the Blue Haven Tavern on the east side of the road, Dr. Williams' car was on the west side of the road.

Mr. Jack Gott, a Tulsa police officer, testified that he was returning from Wichita Falls, Texas, that he came upon the scene of the collision, and observed the two automobiles, the Updike car and Dr. Williams' car with the doctor in it, that he stuck his head in the Williams' car and he could smell the odor of alcohol therein, but that he did not smell whiskey on the breath of the doctor.

Mr. Eakes testified in substance that he lived at Oakhurst, and was waiting at about 5:30 A.M. at the intersection of 57th Street and Highway 66, about a half mile from the scene of the accident on the day in question. He related that a two-tone Pontiac passed him going toward Sapulpa, that wasn't being driven exactly straight, and it weaved across the road and back, though it was on the right side of the road.

Paul Weatherby, a Highway Patrolman, testified that on the morning of June 15, 1951, after the collision, he saw Dr. Williams at the Osteopathic Hospital in Tulsa about 7:00 o'clock A.M. where he had a conversation with Dr. Williams. The attending physician granted permission for Mr. Weatherby to talk to Dr. Williams. Dr. Williams was conscious, and sitting on the bed, and he had a conversation with him. The trial court heard the evidence in relation to the conversation out of the hearing of the jury. After hearing testimony from several doctors as to Dr. Williams' consciousness part of the time in the early morning, and being otherwise satisfied of the voluntary nature of the conversation, Mr. Weatherby's evidence was admitted. Its admissibility is not under attack herein. Paul Weatherby testified he asked the defendant what he had been drinking, beer? To which the defendant replied, 'No, whiskey'. Weatherby related that he smelled a sour odor of intoxicating liquor on the defendant's breach. He further testified that he left the hospital but had to return immediately to pick up something and the doctor was walking down the hall, unsteadily.

Mr. Decker, the Highway Patrolman who investigated the collision, testified to finding a whiskey bottle just outside the left-hand door of the Williams car. It was capped but empty, and there was a strong smell of intoxicating liquor on the defendant's breath.

The defendant contends it was reversible error to admit the whiskey bottle in evidence. This contention has been adversely determined to the defendant's position. All the foregoing evidence was admissible under the following authorities. In Nail v. State, 33 Okl.Cr. 100, 242 P. 270, 273, this court said:

'There was evidence of the manner in which the car was driven, and of bottles smelling of whisky in the car driven by defendant, having a tendency to prove intoxication, and, while the evidence of the condition of defendant at the time she surrendered to the officers was remote, we think it was not erroneous; at least not sufficiently erroneous to amount to substantial prejudice. It was a matter proper to be submitted to the jury, and the remoteness in point of time goes rather to its weight than to its admissibility.'

In Hall v. State, 80 Okl.Cr. 310, 159 P.2d 283, 287, the collision occurred about 1:00 A.M. Therein in regard to the admissibility of evidence of the same character as herein involved this court said:

'Here the defendant is charged with reckless driving and certainly evidence of his condition, and to the finding of bottles of liquor under his truck and at the scene, were circumstances to be considered by the jury, and a part of the res gestae. The testimony of the witness Mrs. Ed Miller, who worked in the tavern at Hooker, that the defendant was in the tavern near 11 p.m., and was drunk at that time, and the evidence that soon after he left there, the collision occurred, was not so remote as to make this evidence inadmissible.'

In Luellen v. State, 64 Okl.Cr. 382, 81 P.2d 323, 329, this court said:

'The state's witnesses showed that his automobile zig zagged down the highway just prior to the accident, and to such an extent that it was necessary for them to stop their automobiles and attempt to leave the highway in order to avoid a collision. ...