Huckaby v. State

OPINION

BUSSEY, Judge:

Appellant, Bobby Joe Huckaby, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Lincoln County, Oklahoma, Case No. CRM-71-339, for the crime of Driving While Intoxicated. He was sentenced to a term of twenty (20) days in the Lincoln County, Oklahoma, Jail and a fine of One Hundred Fifty Dollars ($150.00), in accordance with the verdict of the jury, and a timely appeal has been perfected to this Court.

Evidence at the trial showed that on October 15, 1971, defendant was driving south on Highway 177 in Lincoln County, Oklahoma. At about 9:05 p.m., Trooper Ronald Shoyer stopped defendant for exceeding the speed limit. When the defendant was taken to the police car for a routine check of his driver’s license, Trooper Shoyer detected the smell of intoxicants and other visible signs of possible intoxication. After corroborating his suspicions with a fellow trooper, Shoyer arrested the defendant. The defendant was then taken to the police station where a breathalyzer test was administered. The evidence showed that the test was properly administered by a qualified operator and that the results indicated that the defendant had sixteen one-hundredths (.16) percent blood alcohol content. At the time of trial, fifteen one-hundredths (.15) percent blood alcohol content raised a prima facie case that a person was under the influence of alcohol or intoxicating liquor. (47 O.S.1969, § 756(c))

On appeal, defense contends that the Information, charging defendant with driving and operating and having actual physical control of a motor vehicle while under the influence of intoxicating liquor, is defective by reason of duplicity. Defense alleges tha.t because of this defect, the court erred in denying a demurrer to the information and in admitting evidence on a fatally defective information. It is true that operating a car while intoxicated and having a car under one’s physical control while intoxicated constitute two separate offenses. However, whereas one may have a motor vehicle under his control and not be operating that vehicle, it is certainly obvious that the converse is impossible. Therefore, the information contained merely surplusage of an included element of the offense, operating a vehicle while intoxicated, and was not duplicitous.

Because there was no defect in the information, defense’s objection to amending the information after the State had rested is without merit. As surplusage, it was not necessary to strike the part of the information charging physical control of ⅜ vehicle while intoxicated, nor was it prejudicial to do so.

Defense’s final contention is that the evidence does not support the verdict. On review of all the evidence, we find that the jury could reasonably conclude that defendant was guilty as charged and this Court will not presume to substitute its judgment for that of the jury.

For all the above and foregoing reasons, we are of the opinion that the judgment and sentence appealed from should be, and the same is hereby, affirmed.

BLISS, P. J., concurs. BRETT, J., dissents.