Tahsequah v. StateTahsequah v. State
- Reporters:
- , ,
- Before:
- Bussey
OPINION
BUSSEY, Judge:
Appellant, Charles Frank Tahsequah, hereinafter referred to as the defendant, was charged by information in Case No. CRF-78-464, with thrеe counts of First Degree Manslaughter, pursuant to
At the preliminary hearing, the Statе produced evidence that on April 22, 1978, defendant began drinking beer at about 11:00 a. m. At around 7:00 p. m. on the day in question, while driving his automobile in a westerly direction, five to ten miles over the speed limit on a county road about two miles west of Porter Hill in Comanche County, the defendant crossed the center line and collided with an eastbound automobile. The eastbound vеhicle was driven by Rick Bray and occupied by his wife, Loretta H. Bray, Shelleta Bray, his daughter, and Shane and Peter Bray, his two sons.
Almоst immediately, the accident was reported to the Comanche County Sheriff, who in turn reported the incident to the Oklahоma Highway Patrol. Trooper Robert Hill of the Oklahoma Highway Patrol, arrived at the scene at approximately 7:15 р. m., set out flares, gave first aid, and began his investigation of the accident.
*234 All accident victims, including the defendant, were transported to a hospital in Lawton, Oklahoma. At 8:50 p. m., the defendant was formally placed under arrest for the offense оf Driving Under the Influence of Intoxicating Liquor. The defendant was advised of his Miranda rights and advised of his rights with respect to a chemical test for determining the alcoholic content of his blood. The defendant consented to a breathalyzer test, which was administered at 9:15 p. m. and showed 0.21% blood alcohol. After this test, the defendant’s statement was taken and it was revealed to him thаt Mrs. Bray, Shelleta and Peter had died as a result of the injuries sustained in the accident. The defendant was then transported to the Comanche County jail and booked on charges of Driving Under the Influence, Transporting an Open Container, and Manslаughter in the First Degree.
The defendant’s first assignment of error is that
In his second assignment of error, the defendant contends the trial court аbused its discretion by not permitting the defendant to withdraw his plea of guilty. He argues that the proximate cause of the aсcident was not driving under the influence but was, rather, the defendant’s operation of his vehicle in violation of this State’s highway safety code, namely crossing over the center line into the oncoming lane of traffic. Then it follows, according to the defendant, the proximate cause element of first degree manslaughter was absent, and the trial court had no jurisdiсtion to impose a sentence for this crime.
We find no merit to this jurisdictional argument. The elements of proof required tо sustain a conviction for First Degree Manslaughter due to driving while intoxicated were set forth by this Court in Ritchie v. Raines, Okl.Cr., 374 P.2d 772 (1962). Those elements are:
1. That a person is opеrating a motor vehicle upon a public highway or thoroughfare, and
2. That while so operating the motor vehicle hе is under the influence of intoxicants to such an extent that he is “incapable of safely driving a motor vehicle” and to this misdеmeanor is added the following elements:
3. That a person die within one year and one day, and ’
4. That the death was the direct and proximate result of the operation of a motor vehicle.
We find there was prima facie evidence of each element of proof. It is apparent from the record that the deaths herein were the direct and proximate result of the operation of а motor vehicle by the defendant while he was intoxicated.
. In accepting the defendant’s plea of guilty, the trial court followed the guidelines of King v. State, Okl.Cr., 553 P.2d 529 (1976), by determining that the defendant was competent, advising him of the nature and consequences оf such a plea, and determining that the tendered plea was voluntary. Therefore, the only ground upon which the defendant may assert error is that the trial court abused its discretion in not permitting him to withdraw his plea. Where the discretion of the court is involved in permitting a withdrawal of a plea of guilty and the substitution of a plea of not guilty, the burden is clearly upon the defеndant to show that his plea of guilty was entered through inadvertence, through ignorance, influence, or without deliberation and that there is a defense which should be presented to the jury. Lee v. State, Okl.Cr., 520 P.2d 697 (1974). The defendant has failed to meet this burden and we find under the faсts and circumstances of this case that the court’s refusal *235 to allow the plea of guilty to be withdrawn was not an abuse оf discretion. Therefore, the defendant’s second assignment of error is without merit.
The defendant raises in his third assignment of error thаt the information charged two separate crimes and was thus fatally duplicitous. The error, if any, was waived by defense counsel who failed to file a verified motion to quash the information. If a motion to quash is not filed before a plea is entered to the information, the defendant waives any defect in the information that could have been raised by motion to quash. Atkins v. State, Okl.Cr., 562 P.2d 947 (1977).
The defendant contends in his fourth assignment of error that the sentence is excessive and should be modified. This contentiоn is without merit. The punishment imposed was well within the range provided by law and does not shock the conscience of this Court.
The judgment and sentence is, accordingly, AFFIRMED.
CORNISH, P. J., and BRETT, J., concur.