OLIVER v. STATE

OLIVER v. STATE
1967 OK CR 135
430 P.2d 849
Case Number: A-13941
Decided: 07/26/1967
Oklahoma Court of Criminal Appeals

Appeal from the District Court of Garfield County; Park W. Lamerton, Judge.

Oscar Oliver was convicted of the crime of Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor, and appeals. Modified and affirmed.

Miskovsky, Sullivan, Embry, Miskovsky & Turner, Oklahoma City, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

¶1 Oscar Oliver, hereinafter referred to as defendant, was charged by Information in the County Court of Garfield County, Oklahoma, with Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor. He was tried by a jury, found guilty, and his punishment fixed at a fine of $250 and costs and 30 days in the county jail. From that judgment and sentence, a timely appeal has been perfected to this Court.

¶2 Oral argument was waived and this case was submitted on the record and briefs of the respective parties.

¶3 In order to meet the increased burdens of a first doubling, then quadrupling caseload, this Court, Garbey v. State, 397 P.2d 523, has found it increasingly necessary to implement the provisions of 20 O.S. § 47 [20-47], as amended by Laws 1953, S.B. 450 § 2, the same providing:

"In a misdemeanor case, where a careful reading of the briefs of the appellant and the State, as well as a careful examination of the record or casemade, discloses no reversible error, and where there is ample evidence to support the verdict of the jury (or judgment of the court in absence of the jury), and judgment rendered, this court may affirm such judgment by summary order, or brief statement, or by opinion of length, as the court may see fit."

¶4 In the instant case our examination of the record leads us to conclude that the verdict of the jury was amply supported by the evidence and while there was no fundamental error sufficient to warrant a reversal, there were improper questions which probably caused the jury to impose a greater punishment than the facts and circumstances would ordinarily warrant.

¶5 We are of the opinion the interest of justice would best be served by a modification of the judgment and sentence from a term of 30 days imprisonment in the county jail and a fine of $250 and costs, to a term of 10 days imprisonment in the county jail and a fine of $100 and costs, and as so modified, the judgment and sentence appealed from should be, and the same is hereby, affirmed.

BRETT, J., and NIX, P.J., concur.