No. A-7961. | Okla. Crim. App. | Aug 28, 1931
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of driving an automobile while intoxicated and his punishment fixed at six months in the penitentiary.
The testimony for the state is, in substance, that, at the time charged, defendant was driving a heavy truck west on Fourth street, Oklahoma City, at the Hudson street crossing. The weather was rainy and the street slippery. He did not observe the stop line, but drove into the crossing at a speed from 35 to 40 miles an hour. As a result, a collision with a car driven by one Denniston occurred in which the truck was overturned. Broken bottles were found in the cab of the truck, with one bottle about half full of whisky. The clothes of defendant were partially saturated with whisky. A police officer testified that the breath of defendant smelled of whisky; that he staggered as though intoxicated and sat down in a chair in the police station and went to sleep. Defendant denied that he was drinking; stated that he knew nothing of the empty bottles, nor of the bottle containing whisky, and that they may have been put there by a man who was with him in the cab; that he ran the stop line on account of the slippery condition of the streets. The issue of fact thus presented was a question for the jury. There is ample evidence to sustain their finding. It is also argued that the punishment is excessive. The jury having found the issue of fact against defendant, it cannot be said that six months' imprisonment is excessive. Some contention is also made that the instructions are erroneous, and that the argument of the county attorney was prejudicial. The instructions, by agreement, were given orally and transcribed, and no exceptions were *43 taken, nor was there any exception to the argument of counsel.
The appeal is without merit.
The case is affirmed.
CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.