White v. StateWhite v. State
- Reporters:
- ,
- Before:
- Brett
Lead Opinion
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thereafter filed this Petition seeking relief on the premise that the statute under which he was convicted had been repealed by the 1961 Session of the Oklahoma Legislature, when the Oklahoma Highway Safety Code was passed.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
Title 47, O.S. § 11-903, provides as follows :
“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
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.
Dissenting Opinion
(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.