Opinion
No. A-11796.
June 24, 1953. Rehearing Denied July 15, 1953.
(Syllabus.)
1. Witnesses — Cross-Examination to Show Friendship or Bias in Favor of Either State or Defendant. Ordinarily a witness may be asked on cross-examination as to any matter which tends to disclose his friendship or bias in favor of either the state or the defendant for the purpose of affecting his credibility as a witness.
2. Evidence — Weight of Evidence for Jury. Where evidence is conflicting and different inferences may be drawn therefrom, it is province of jury to weigh same and determine the facts.
3. Automobiles — Factual Issue Involving Question of Intoxication While Driving. Person who undertakes to operate motor vehicle upon streets and highways of State with admitted smell of alcohol upon his breath, even though claimed to be derived simply from drinking two bottles of beer, interjects factual issue involving question of intoxication in prosecution for driving motor vehicle while under influence of intoxicating liquor.
4. Evidence — Alcoholic Breath Plus Demeanor Indicative of Drunkenness Support Finding of Intoxication. Evidence of alcoholic breath plus demeanor indicative of drunkenness, and evidence of erratic driving that resulted in collision with another car, supported conviction for driving automobile while under the influence of intoxicating liquor.
5. Appeal and Error — Case not Reversed for Insufficiency of Evidence. Criminal Court of Appeals will not reverse case for insufficiency of the evidence if there is any substantive evidence on which jury could reasonably base its verdict of guilty.
6. Appeal and Error — Necessity for Taking Exceptions to Instructions Before Submission to Jury. By the fifth subdivision of section 831 [ 22-831], Title 22, O.S. 1951, and Tit. 22 O.S. 1951 § 856[ 22-856], it is contemplated that instructions to the jury in a criminal case shall be settled before they are read to the jury, so that counsel, if they have any exceptions to the instructions, may point out their objections to the court and may submit additional instructions in order that the court shall have an opportunity to correct any error which he may have made. Also, to give counsel for the state an opportunity to join in requesting the correction of any error in the instructions. Unless the exceptions to the instructions are taken at or before the time they are read to the jury, such exceptions will be unavailing unless the errors are of a fundamental character.
Appeal from Municipal Criminal Court, City of Tulsa; George B. Schwabe, Judge.
Jack Ryan was convicted of drunk driving, and he appeals. Affirmed.
S.J. Clendinning, Tulsa, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., and A.M. Widdows, City Atty., Tulsa, for defendant in error.
The appellant, Jack Ryan, was charged in the municipal criminal court of the city of Tulsa, with the offense of driving a motor vehicle on a highway while under the influence of intoxicating liquor. He was tried by a jury which returned a verdict of guilty and left the punishment to be assessed by the court, and the court assessed punishment of a fine of $59, and defendant to serve ten days in jail. Appeal has been perfected to this court.
The state offered the evidence of six witnesses to show that defendant was driving his car on the streets of Tulsa in a reckless manner, as alleged in the information, and ran his car into a parked car, and that thereafter Officer Newton and a second officer in a traffic car and who were driving to the rear of the defendant at the time, sounded their siren and turned on the red spotlight and caused the defendant to stop half a block away. Several officers swore that the defendant had the smell of alcohol on his breath and acted as if he were under the influence of intoxicating liquor.
The defendant admitted having consumed two beers just prior to the accident, but denied being intoxicated, and claimed that a shot of insulin that he had to take just prior to the accident accounted for any unusual appearance, if any. He claimed that the officers without cause turned the spotlight on him and sounded the siren and that frightened him and caused him to run into the parked car. He claimed that the officers were prejudiced against him on account of some kind of an argument existing between city employees and the police department about an increase in salary, and that Mr. Ryan was the leader of the city employees in blocking the increase in salary of the city of Tulsa police department.
The officers, on the other hand, claimed that they did not know who was driving the car until after the car had been stopped, and one of the officers did not then know the defendant. They claimed the arrest was made solely on account of the erratic driving and the collision and their resulting conclusion that the defendant was intoxicated.
The court would not permit cross-examination concerning the alleged controversy involving salary increase of members of the police department that the defendant is supposed to have blocked, but the matter did come to the attention of the jury by the questions and answers in the examination of some of the witnesses. If the officers did not know who was driving the car until after the arrest, the question of prejudice on the part of the policemen in general against the defendant on account of his activities in the salary dispute would not require consideration. It will be noted that there was no claim of any past difficulties with or personal prejudice on the part of the arresting officers. In the case of Kilpatrick v. State, 90 Okla. Cr. 276, 213 P.2d 584, this court said:
"It is difficult to say just how far a trial court should go in the admission of collateral matters such as this for the purpose of showing the relationship of the parties in so far as it would affect the credibility of the witness. It might have been that the court should have allowed the defendant to have gone into more details concerning the controversy with Mills, but the trial courts are necessarily vested with a large amount of discretion in controlling the issues that are to be tried of the guilt or innocence of the accused, and should not allow the trial to be side-tracked by hearing the merits of a collateral controverted matter between the parties. The court's ruling in this regard will be sustained."
As to the question of the charge set out in the information, there was an issue of fact presented for the jury to determine and their conclusion was adverse to the defendant. Simonton v. State, 94 Okla. Cr. 274, 235 P.2d 542.
The record discloses no fundamental error. Tit. 22 O.S. 1951 § 1068[ 22-1068] and the fourth paragraph of the syllabus in Byrd v. State, 91 Okla. Cr. 433, 219 P.2d 1027, and Walker v. State, 93 Okla. Cr. 251, 226 P.2d 998 and Tripp v. State, 94 Okla. Cr. 231, 237 P.2d 171, are conclusive of certain points raised. We are not required to treat these issues further. Tit. 20 O.S. 1951 § 47[ 20-47].
The verdict and judgment are affirmed.