Whitmore v State

Whitmore v State
1932 OK CR 77
10 P.2d 291
53 Okl.Cr. 251
Decided: 04/09/1932
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Review Motion for New Trial on Ground Verdict not Supported by Evidence.

Page 252

and must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot be written into a record, than the appellate court can by reading the record after it is written. And, when the trial court has considered and passed upon such issue, it comes to this court only on the proposition that as a matter of law, the verdict is contrary to the evidence.

Appeal from District Court, Lincoln County; Hal Johnson, Judge.

B.F. Whitmore was convicted of manslaughter in the second degree, and he appeals. Affirmed.

Jas. A. Embry, for plaintiff in error.

The Attorney General, for the State.

CHAPPELL, J. Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of manslaughter in the second degree, and his punishment fixed by the jury at a fine of $500, and imprisonment in the county jail for a period of 90 days.

Defendant contends first that the verdict and judgment is not sustained by sufficient evidence, and is contrary to the law and to the court's instructions.

The evidence of the state was that defendant, while intoxicated, drove his truck on the wrong side of the highway and struck the car of one Clay Davidson, notwithstanding the fact that Lowell Davidson, who was driving the car, drove it half way off the pavement on his side of the road in an attempt to avoid being struck by defendant's car. Lowell Davidson was killed as a result of his car being struck by the one driven by defendant.

Instead of the evidence of the state being insufficient to support the verdict of the jury, it was ample to justify

Page 253

a verdict of murder. Drunken driving can never be stopped until jurors do their full duty under the law and the evidence. The degree of guilt found in this case and the punishment fixed by the jury outrages public justice, and is an invitation to drunken drivers to continue their unlawful course at the expense of human life.

Defendant next complains that the court erred in its instructions to the jury. There is no merit in this contention.

Defendant next contends that the court erred in overruling his motion for a new trial. This contention is equally without merit.