Wolf v. State

• Decision Date: 10 October 1962
• Docket Number: No. A-13100,A-13100
• Citation: 375 P.2d 283
• Parties: John William WOLF, 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 283

375 P.2d 283

John William WOLF, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13100.

Court of Criminal Appeals of Oklahoma.

Oct. 10, 1962.

Syllabus by the Court

1. It is 'reckless driving' for any person to drive a motor vehicle in a careless or wanton manner, without regard to the safety of persons or property. 47 O.S.A. § 121.3(k).

2. It is error to recount, in a question put to defendant on cross-examination in a reckless driving charge, the speed he attained on a prior conviction.

3. Evidence of prior convictions involving infractions of state rules of the road and city ordinances, providing public street and highway safety, are admissible on cross examination as going to the credibility of the defendant on his trial on a reckless driving charge.

4. Admissions by the defendant, made at scene of the offense, immediately thereafter, in relation to a pending police case for drunken driving, in which he asked that nothing be said about the instant case, because he was out on bond on the drunken driving charge and if anything were said about it, it would probably cause him trouble, are admissible in evidence as part of the res gestae, going to establish the condition of defendant's mind immediately after the crime, under the conditions then existing, lending credence to his admission of guilt made at the same time.

5. The term 'res gestae' means matters incidental to the main fact and explanatory to it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main fact might not be properly understood; the events themselves speaking through the instinctive words and acts of the participants, the circumstances, facts and declarations growing out of the main fact, contemporaneous with it and serving to illustrate its character.

6. Declarations, to be a part of the res gestae, need not be precisely concident in point of time with the principal fact. If they spring out of it, shed light upon and tend to explain it, are voluntary and spontaneous, and are made at a time so near it as to preclude the idea of deliberation or fabrication, then they are to be regarded as contemporaneous, and are admissible as evidence.

7. A bond forfeiture, when deliberately made, in police court is tantamount to a plea of guilty and should be so regarded, and the defendant's admission thereof on cross examination does not constitute error.

8. One may waive and does waive the giving of an instruction by failure to request it.

9. It counsel for defendant is of the opinion that additional instructions should be given to the jury, it is their duty to reduce them to writing, submit them to the trial judge and request that they be given. If counsel fail to do this, a conviction will not be reversed unless the Court of Criminal Appeals is of the opinion in the light of the entire record, including instructions which were given, that by the failure of the trial court to instruct the jury upon some material question of law, the defendant has been deprived of a substantial right.

10. The Court of Criminal Appeals would not be authorized to reverse a conviction on ground that trial court erred in its instructions to the jury, unless from an inspection of the entire record it appears that the defendant was injured thereby, and to determine the issue, the court must consider the question as to whether the defendant is guilty or innocent of the offense charged.

Appeal from the County Court of Cleveland County; Silas C. Wolf, Judge.

John William Wolf was convicted of the offense of reckless driving, and appeals. Affirmed.

Bailey & Whitlock, Norman, for plaintiff in error.

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

BRETT, Judge.

The plaintiff in error, John William Wolf, defendant below, was charged by information in the county court with reckless driving (47 O.S.A. § 121.3(a) and (k)) ^* of a motor vehicle on Highway No. 77, approximately one mile south of Moore, Oklahoma, on September 26, 1960, all in Cleveland County, State of Oklahoma.

Defendant was tried by a jury, convicted, his punishment fixed at 90 days in jail, a fine of $500, and the costs. Judgment and sentence was entered accordingly, from which this appeal has been perfected.

The evidence herein clearly establishes the defendant's guilt. It appears he had been drinking intoxicants, and had vomited all over the floor board of his automobile in the front. He admitted to the highway patrolman and several other persons that he was driving the car at the time complained of. It appears that he may not have been drunk at the time of his arrest at 9 p. m., two hours after the offense at 7 p. m. Some of the evidence would tend to establish that he was not, but we believe that if he had been so charged the evidence would have been sufficient, if believed by the jury, to support such charge. Nevertheless, it clearly appears he was guilty of reckless driving as defined by the statute. 47 O.S.A. § 121.3(k):

'It shall be deemed reckless driving for any person to drive a motor vehicle in a careless or wanton manner without regard for the safety of persons or property * * *.'

The defendant's automobile was being followed by J. B. Beaird in his car. Beaird, at a speed of 50 to 55 miles per hour, tried to pass the defendant. This he did several times, but the defendant would speed up and pull to the left to block him. Beaird would drop back in behind him, and defendant would slow down to 35 to 40 miles per hour. The defendant made no signal of his intention to pull out in front of Beaird and gave no left hand signal at any time, and did not signal that he was going to slow down.

Finally Beaird attempted to pass again and accelerated to a speed of 65 to 70 miles an hour to get around, but his car would not accelerate as fast as the defendant's Pontiac. The defendant continued to pull to the left and Beaird sounded his horn when even with him, but defendant kept pulling over in front of Beaird for about 200 yards, crowding Beaird off the highway onto the median a mile south of Moore. The defendant continued to pull to the left, passing close to the front end of Beaird's car, hitting the median about 150 feet further south. Defendant then took across the median, then southeastwardly across both lanes of the north-bound highway, across the bar-ditch, through a barbed wire fence, and 50 feet into a field on the east side of the north-bound highway. Beaird testified no one was in the car with the defendant, and defendant told Beaird no one was with him when Beaird got his car stopped and with the aid of his flash light located the defendant's car. Beaird said that defendant was then 'staggering drunk', and thick-tongued in his speech. He further said the defendant's vomit in the Pontiac was saturated with alcohol and the defendant reeked with the odor of alcohol. The defendant admitted to Beaird he had been drinking, but contended he was not drunk.

About two hours later the highway patrol located the defendant, who returned to the scene of the offense. Defendant admitted to Patrolman Allen that he was driving, and stated no one was with him in the Pontiac. Defendant first denied he had been drinking, then admitted he had drunk a couple of beers. The patrolman said the vomit in the Pontiac smelled strongly of alcohol. He testified in his opinion the defendant was at that time intoxicated. His speech was different than ordinary, he had the odor of alcohol about him and his face was flushed. But he said at the time he saw defendant his condition did not warrant a drunk driving charge.

Patrolman Killian corroborated these details testified to by Patrolman Allen.

On this testimony and defendant's admissions, the jury found defendant guilty of reckless driving.

Defendant denied he was driving, and testified that a man by the name of Dwight Funderburk was driving. He admitted the offense was committed at the time and place alleged, and that he reported not only to the patrolmen that he was driving, but also informed his employers that he was driving, and that he told Mr. Beaird he was the driver of the Pontiac. He did not know where Funderburk lived, he said, neither did he produce Funderburk as a witness. The jury did not believe his denial, which is not hard to understand.

Defendant admitted without objection, on cross examination, the following prior offenses: A speeding offense on April 26, 1957 in Cleveland County for which he paid a $100 fine and in which he admitted attaining a speed of 105 miles an hour. Complaint is correctly made of this detail of the offense being admitted, but there was no time objection made thereto. Nevertheless it was error to recount the details of the speed involved in the violation. Little v. State, 79 Okl.Cr. 285, 154 P.2d 772; Winn v. State, 94 Okl.Cr. 383, 236 P.2d 512; Blanton v. State, Okl.Cr., 357 P.2d 243.

Other admissions on cross examination were as follows: A speeding fine in Tulsa County common pleas court for driving 67 miles per hour at night; complained of...