Crisp v. State

JONES, Presiding'Judge.

The defendant, Bert Crisp, was sentenced to serve 90 days in the county jail and pay a fine of $200 after conviction in the County Court of Kay County for driving an automobile on the highway while intoxicated.

The sole question presented by the appeal is whether the sentence was excessive,.

The proof shows that the' defendant while driving an old model automobile on a street in Ponca City -turned a corner and struck the rear end of an automobile parked at the curb which caused his bumper to lock with the bumper of the automobile which 'was struck. Defendant was driving his car in low gear at the time and testified that he was driving slowly waiting on a car ahead of him to finish backing from the curb so that he could park his car. Only nominal damage was done to the cars. After the bumpers on the cars had locked, defendant rocked his car back ánd forth until they were disengaged and he then parked his automobile and walked into a drug store where he was engaged’in drinking a Coca-Cola at the time traffic policemen arrived to investigate. The policemen and others testified defendant was intoxicated. Defendant denied that he was intoxicated, but admitted that about two hours before the collision he had drunk two bottles of beer and that the preceding night he had been fishing with a companion on the river and the two of them together had consumed six bottles of beer. According to the record it was the defendant’s first alleged offense.

We have on occasion in the past because of special circumstances in the particular case, modified first offenses of driving an automobile while under the influence of intoxicating liquor to as low as a fine of $100 and costs. Russell v. State, 76 Okl.Cr. 198, 135 P.2d 1003; Scott v. State, 80 Okl.Cr. 259, 158 P.2d 728. The Legislature has recently enacted a law fixing a minimum punishment of 10 days in the county jail for the first offense, of driving an automobile while intoxicated. Of course this act was passed subsequent to the institution of this prosecution and is not applicable but it does ‘show the public policy of the State towards these offenders. Pursuant to the statute tinder which this prosecution was instituted the accused could have been assessed just a fine but he also could have been assessed a jail sentence of not to exceed one year. 47 O.S.195-1 § 93, as amended, Laws 1953, page 191.

It is our conclusion in view of all the facts and circumstances of this case that justice will be served by modifying the sentence imposed upon the defendant .from 90 days in the county jail and a fine of $2Q0,to 30 days in the county jail and a fine of $100 and the judgment and sentence as thus modified is affirmed.

BRETT and POWELL, JJ., concur.