Wilson v. State

• Decision Date: 16 May 1951
• Docket Number: No. A-11279,A-11279
• Citation: 94 Okla.Crim. 189,237 P.2d 177
• Parties: WILSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 177

237 P.2d 177

94 Okla.Crim. 189

WILSON v. STATE.

No. A-11279.

Criminal Court of Appeals of Oklahoma.

May 16, 1951.

On Rehearing June 14, 1951.

SYLLABUS BY THE COURT.

1. Where there is a conflict in the evidence, the Criminal Court of Appeals will not set aside the verdict in a case, if the evidence is sufficient to sustain the judgment and sentence.

2. No prejudice can result to a defendant if convicted of a lower degree of homicide than warranted by the evidence.

3. In instructing the jury, it is not necessary, that the trial court use technical legal terminology altogether, if the language employed is sufficient to convey to the jury the law as applied to the case.

4. Instructions in the trial of a case must be considered as a whole.

On Rehearing

1. Where such terms of definition as 'proximate cause' have become well established precedents in the law it is the duty of the trial court to follow in particular instances such established precedents in the use of definitive terms in instructions to the jury.

2. Is it reversible error in a criminal action wherein it is alleged and proven that the defendant was guilty of acts of culpable or criminal negligence in the operation of his automobile resulting in the death of another, for the trial court to fail to instruct the jury that unless they further find beyond a reasonable doubt that the defendant's acts of culpable or criminal negligence was the proximate cause of the death of the defendant they should acquit the accused.

R. L. Christian, Frederick, Jerome Sullivan, Duncan, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

The plaintiff in error Jefferson William Wilson, defendant below, was charged in the district court of Tillman county, Oklahoma, by information with the crime of manslaughter in the first degree and driving and operating a 1940 Chevrolet automobile on the highways of said county while intoxicated in such manner as to collide his said automobile with another Chevrolet in such manner and force as to cause the death of Bobby Earl Milligan, 5 years of age, who was a passenger in said other Chevrolet automobile at the time of said collision. The defendant was tried by a jury, convicted, and his punishment fixed at 3 years in the penitentiary, after which the trial court entered judgment and sentence accordingly. From said judgment and sentence this appeal has been perfected.

In his petition in error the defendant makes various assignments of error which he presents herein under two contentions. First, he urges the evidence is insufficient to sustain the conviction. Second, he urges that the trial court erred in refusing to give defendant's requested instruction 2 in substance that if they found the defendant was guilty of culpable or criminal negligence, before the defendant can be convicted they must further find that such culpable or criminal negligence was the proximate cause of the death of the deceased.

In considering the first proposition as to the sufficiency of the evidence it will be necessary to give a substantial resume of the same. The state's proof in support of its charge that the defendant was driving his car while intoxicated was in substance as follows. Mr. Durward Hayter of Norman was visiting his father, and was driving his automobile, returning to Frederick from a fishing trip. He was driving south and had reached a point about 4 miles north of Frederick when an automobile approashed from Frederick driving north. That car approaching from the south was a 1941 Chevrolet and was driven by Odie Milligan accompanied by his brother. The Milligan car dimmed its lights and Mr. Hayter dimmed his lights. Hayter said when the Milligan car was along side the Hayter car there was a screeching of brakes and a head-on crash of the Milligan car and what proved to be the defendant Wilson's car driving south toward Frederick. He said Wilson would not talk to him after the collision. He and his wife helped get the occupants out of the cars and placed the injured, including the deceased Bobby Earl Milligan, in passing automobiles that has stopped, so the parties could be taken to the hospital in Frederick. He tried to get the defendant to go to the hospital, but the defendant wouldn't talk. Transportation was arranged for him nevertheless. Wilson would not tell Hayter his name. He said there was glass on the ground from the cars and beer bottles. On cross-examination Hayter testified that though he didn't observe the defendant Wilson's car, he judged from the skidmarks and conditions after the wreck it was driving about 65 miles an hour. He said he did not smell intoxicating liquor on the defendant's breath.

Mrs. Hayter, witness for the state, said she saw some broken beer bottles. She said she didn't see or talk to the defendant or his companion, she was assisting the people in the Milligan car. She said as the Milligan car approached it dimmed its lights and she dimmed theirs. Bill Milligan testified that his brother Odie was driving the car; Odie Milligan's little boy was in the back seat and Bobby Earl, his boy, was in the front seat with him with the boy's head in his lap. They had taken the boys to a picture show in Frederick and were returning to their home in Tipton. He said as they drove north, they met two cars going south and the second car was about 20 feet behind the front car. It suddenly pulled out into their lane and the head-on collision resulted. Bill Milligan was bruised and sustained a broken left arm. His son Bobby Earl was rendered unconscious, was taken to the hospital in Frederick and later removed to Oklahoma City where he died of a skull fracture. Cross-examination revealed they were driving about 45 or 50 miles an hour.

Odie Milligan, the owner of the north-bound car, testified that he was driving north about 50 miles an hour with his lights burning and met two cars, as he got up close to the lead car the other car darted out from behind the front car into his path. He said he tried to take to the shoulder but did not have time to make it. He said the parties in the other car, the defendant and Cline, would not talk. His car turned over and stopped with its rear end up with its wheels in the air. He said the occupants of the other car were standing beside their car, with blood on them.

To support the charge of drunken driving the state offered John Bandy who took the defendant and his companion Cline in his car to Frederick. He insisted the defendant who rode in the front seat with him should go to the doctor but the defendant insisted on being taken home, as did Cline. He said he observed an odor of drink but couldn't identify it. On cross-examination he said the defendant had a rasping sound in his chest like bones grinding together. Mrs. John Bandy, witness for the prosecution, testified she detected the odor of alcohol and that both the defendant and Cline might have been intoxicated but realizing they were seriously injured said she could have been mistaken. On cross-examination she stated she could not determine the odor coming from the defendant. Tom Cooper, policeman in Frederick, testified for the state, he went to the defendant's home and took him to the hospital. He said in his opinion the defendant was drunk. In this he was corroborated by Knox Polk, another Frederick policeman, who accompanied him with the defendant from his home to the hospital. The sheriff, Elmer Taylor, testified to the presence of broken beer bottles, and 2 full bottles of beer at the scene of the collision, and he identified the bottles of beer, state's Exhibits 5 and 6, as having been picked up at the scene of the collision. He further said that the evidence on the highway at the point of collision showed the defendant's car pulled sharply across the road to the east. Highway Patrolman Ervin Heidebrecht testified for the state that he found the broken bottles of beer and 2 full bottles. He testified the only skidmarks at the scene of the collision were after the impact. He said he inquired of the defendant how the collision occurred and he stated he didn't see the other fellow's taillight. The defendant he said appeared irrational and on cross-examination he testified that he later saw the defendant at the hospital and he smelled the odor of alcohol and that the defendant Wilson was intoxicated. In substance the foregoing constitutes the state's case.

The defendant's defense was that he was and had been a man of good reputation. Numerous witnesses support this contention with their testimony. He testified that he was 40 years of age. On the occasion in question he said that he left Frederick on the day of the collision together with Clois Cline, his nephew, to see a friend of his who lived in Snyder. When they reached Snyder he said it was about 7:00 P.M., and that he and his nephew met 4 other boys, friends of Cline, when they went into a cafe. There he said he had a bottle of beer. He was unable to locate his friend Jackson. Cline, and the 4 other boys and defendant decided to go to Craterville to a skating rink. It was suggested before they left that they pool their funds and buy a quantity of beer. This they did, and bought about 16 to 18 bottles of beer. The defendant and Cline both testified that the defendant made no contribution to buying the beer and that he drank none of it. The defendant denied positively he was drunk. He did admit however that during the course of the evening he had drunk a couple of bottles of beer, the last one just before they started to Frederick. In explaining the accident he testified that just before the collision an approaching automobile with very bright lights created a glare and it was then he suddenly came upon a car (the Hayter car) that had no taillight. He said he stepped on his brakes and the left front wheel grabbed, throwing him to the left of the center of the...