Fred Joseph WHITE, Petitioner, v. The STATE of Oklahoma, Respondent.
No. A-16308
Court of Criminal Appeals of Oklahoma
March 24, 1971
Defendant asserts numerous assignments of error, mostly dealing with an illegal search and seizure, and even though we agree that the search and seizure was questionable, the fruits of said search and seizure were never introduced in evidence. He further contends that the pre-trial line-up rendered the identifying witnesses testimony inadmissable as it was suggestive and persuasive. However, each witness positively identified defendant as the person involved in the robbery, independent of the line-up and no mention of the line-up was made by the state until after it had been brought out by the defendant. The trial court held a hearing outside the presence of the jury to determine the validity of the line-up and instructed the district attorney not to present any evidence regarding it. We have found no merit to defendant‘s contention of error.
There are some inclination of courts to adopt the rationale that, in a case such as this, the court is bound by the first sentence imposed before the appeal—which in this case was 60 years; and after defendant was successful on appeal, at a new trial he was sentenced to 75 years in prison. See, United States v. Gambert, 433 F. 2d 321. Also see, State of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. The above cited cases even where defendant was successful on appeal and retrial resulted in greater punishment than that rendered on the first trial, and the Court said in substance that the greater sentence on retrial was “unconstitutional and void“. However, this Court as it is now constituted, does not see fit to adopt such as the law, but instead modify said sentence to Sixty (60) Years in the interest of justice, and defendant to be given credit for the time served as a result of the case he won on appeal. Modified and affirmed.
BUSSEY, P. J., and BRETT, J., concur.
G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for respondent.
OPINION
BRETT, Judge.
This is an original proceeding in which petitioner, Fred Joseph White, seeks issuance of the writ of habeas corpus, and relief from the judgment and sentence of the District Court of Creek County, in that court‘s case number 6166-C, wherein he was convicted by a jury and was sentenced to serve four years imprisonment for First Degree Manslaughter. Petitioner‘s conviction was appealed to this Court as case No. A-14,767; was Affirmed and reported in 458 P.2d 322; thereafter, his Petition filed in the United States Supreme Court for Writ of Certiorari, in 397 U.S. 917, 90 S. Ct. 922, 25 L.Ed.2d 98, was denied February 24, 1970. Petitioner‘s subsequent application for suspension of sentence was denied by the trial court, and petitioner thereafter filed this Petition seeking relief on the premise that the statute under which he was convicted had been repealed by the 1961 Session of the Oklahoma Legislature, when the Oklahoma Highway Safety Code was passed.
Petitioner was charged with first degree manslaughter under the provisions of
“Negligent homicide
“(a) When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.
“(b) Any person convicted of negligent homicide shall be punished by imprisonment in the county jail for not more than one year or by fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.
“(c) The Commissioner of Public Safety shall revoke the license or permit to drive and any nonresident operating privilege of any person convicted of negligent homicide. Laws 1961, p. 387, § 11-903.”
We have considered the petition and the response filed herein very carefully, and after due consideration reach the conclusion that petitioner‘s contentions are without merit, for the following reasons.
The decision of Atchley v. State, supra, is correct with reference to the interpretation of
Petitioner contends that insofar as Article IX, of the Oklahoma Highway Safety Code, defines both “Driving While Under the Influence of Intoxicants“, and “Reckless Driving“, it was the legislative intent that both offenses fall within the definition of “Negligent Homicide“. We do not interpret the legislative intent in that manner.
“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 or in violation of the conditions contained in section 11-801.”
Section 11-801 provides for “Basic Rule and Maximum Limits“, which covers the careful and prudent manner of driving within the specified speed limits, under defined conditions. No where in either of the sections: § 11-801, or § 11-903, do we find special provisions or allowances being made for one driving under the influence of intoxicants.
In reviewing the cases cited in Atchley v. State, supra, we find that each of those cases concerned negligent driving only, and none discussed the added condition of intoxication of the driver.
We are therefore of the opinion that if it had been the legislative intent to include the condition of intoxication in the definition of negligent homicide,
We therefore hold, subject to sufficient proof of intoxication being available, a condition of intoxication takes the offense of homicide, resulting from an automobile accident, out of the definition of “Negligent Homicide” and a conviction for Manslaughter laid under
Therefore, petitioner‘s writ of habeas corpus is hereby denied; and the Clerk of this Court is directed to reissue the Mandate in case No. A-14,767, within five (5) days of the date of this opinion.
Writ denied.
BUSSEY, P. J., concurs.
NIX, Judge (dissenting).
I am of the opinion that the law as laid down in Atchley v. State, supra, is likewise prevailing in the case at Bar; therefore, I cannot agree with my learned colleague.