Defendant, John Brown, was charged in the county court of Choctaw county with the crime of driving a motor vehicle while under the influence of intoxicating liquor. He waived a jury, was tried before the court, found guilty and his punishment assessed at a fine of $50 and costs. From this judgment and sentence he has appealed.
A motion filed by the state to dismiss the appeal for the reason that brief had not been filed within the time allowed by the rules of the court, and that the appeal was frivolous and for delay only, has been examined and considered, and we are of the opinion that the motion should be denied. A brief was filed by the defendant on September 3, 1944, and long before this case was reached for consideration.
A number of assignments of error are presented, but we are of the opinion that they may all be considered under the assignment:
"That the verdict is contrary to law and the evidence, and is wholly insufficient to sustain the judgment and sentence."
Only one witness was presented by the state, and the defendant placed no witness upon the stand.
We deem it advisable to quote the whole of the testimony of the one witness, L. D. Rhodes:
"Q. Your name is L. D. Rhodes? A. Yes, sir. Q. What official position do you hold in the state? A. I'm a trooper with the State Highway Patrol. Q. Do you know the defendant, John Brown? A. Yes, sir. Q. Did you see him on the 9th of October, 1943? A. It was on the 10th, I believe. Q. It was on or about that time that you saw him? A. Yes, sir. Q. Where did you see him? A. About one-half mile south of Grant, on the turn, just *Page 305 south of the underpass, on U.S. Highway 271. Q. What was the occasion for you going there? A. There had been an accident reported down there and I went to investigate it. Q. What did you find there? A. There was an auto sitting on the right side of the road next to a post and John was in another car that was on the north side of the highway facing west, on the opposite side of the highway with clearance between for traffic. Q. John's car was facing west? A. Yes, sir. Q. John's car was on the north side of the highway? A. Yes, sir. When I got there John was sitting in his car and the people in the other car, two of them were named Holley and I don't remember the names of the others, they were in front of their car. I went thru the regular procedure, I took down their names and filled out my report. I called their car number one. I went to John's car and asked him to get out and he did, he was unsteady on his feet and I asked him to stand in front of the car while I searched his car. He was unsteady on his feet. He began to tell me how to prevent these accidents, and he said, 'Johnnie had had several drinks,' and he said 'you know how it was,' and I asked him why he was there in that condition and he said he had been to Grant and that his wife had been driving, and he said he got in the car and was coming back to town, I brought him to town. It was about 5:30 when I got there and I brought him to town about 7:30. He was still woosie on his feet then. Q. He said he had driven from his place to the scene of the accident? A. Yes, sir. Q. He was under the influence of liquor? A. Yes, sir. By Mr. Jenner: That is all. Cross-examination by Mr. Brewer: Q. All you know about it is what he told you? A. I know he was under the influence of liquor. I don't know how far he had driven. Q. You don't know whether he had taken the drink after the accident or before? A. At the time of the investigation Mr. Holley said he was drunk. By Mr. Brewer: We object to what Mr. Holley said. By the Court: Overruled, exceptions allowed. A. At that time I had not been to his car and he was not trying to get away. Q. Was he shaken up a bit? A. He had a bruise *Page 306 on his head. Q. There was blood on his head? A. It was a blue spot on his head. Q. You don't know how long it had been since the accident happened when you got there? A. They said it had been about 15 minutes. Q. Did John tell you that? A. No, sir. Q. In all your investigation, did he tell you it would not have happened if the steering gear had not broken? A. No, sir. Q. You don't know whether he was drinking at the time of the accident except what he told you? A. At the very minute of the accident I could not tell, but I can say he was drinking in 15 minutes from the time of the accident. By Mr. Brewer: That is all. By Mr. Jenner: Q. Why did he say they had an accident? A. He told me 'Johnnie does not have these accidents' and Iask him why he had this one and he said 'if Johnnie had not had several drinks he would not have had this accident.' By the Court: Q. He admitted he had several drinks? A. Yes, sir. Q. Do you think he told you the truth about the accident? A. Yes, sir. By Mr. Jenner: State rests."
It is the contention of the defendant that the answer of the witness in the following testimony should have been stricken:
"Q. You don't know whether he had taken the drink after the accident or before? A. At the time of the investigation Mr. Holley said he was drunk. By Mr. Brewer: We object to what Mr. Holley said. By the Court: Overruled, exceptions allowed."
This testimony was clearly hearsay, and should have been stricken by the court.
It is also contended that under the law, corpus delicti in a criminal case cannot be established by the confession alone, but there must be independent evidence direct or circumstantial of corpus delicti before a conviction can be sustained; and that this rule of law has application to the facts here presented.
This contention is based upon the testimony of the witness Rhodes when he testified that defendant said to *Page 307 him: "Johnnie does not have accidents." And, further: "And I asked him why he had this one, and he said, 'If Johnnie had not had several drinks he would not have had this accident.' "
The above rule of law has often been announced by this court. Phenis v. State, 76 Okla. Cr. 156, 135 P.2d 62; Lake v. State,59 Okla. Cr. 280, 57 P.2d 1199.
The record does not disclose or give any intimation as to why only the witness Rhodes was placed upon the witness stand in this case. He was not present at the time of the collision, and did not see the defendant operating the automobile. The parties who were in the other car were not placed upon the stand. The witness Rhodes testified that the defendant was under the influence of intoxicating liquor. This was evidently his opinion, and the only facts testified to were that defendant was "unsteady on his feet"; and, "He was still woozy on his feet then." No doctor was called to examine defendant, and no officer or other person was presented who saw him when he was brought to town. The following question was asked the witness:
Q. You don't know whether he was drinking at the time of the accident, except what he told you?" And he answered: "A. At the very minute of the accident I could not tell, but I can say he was drinking in 15 minutes from the time of the accident."
Just how the witness could have known that the defendant was drinking 15 minutes from the time of the accident is hardly understandable.
Taking the record in this case as a whole, after elimination of the hearsay testimony, we are of the opinion that it was insufficient to sustain the conviction. The circumstances may have been sufficient to warrant the *Page 308 court in reaching the conclusion that the defendant was driving the car at the time of the collision; but the evidence that defendant was under the influence of intoxicating liquor at the time of the collision is almost wholly dependent upon the statement of defendant as above set forth, and the opinion expressed by the one witness, Rhodes, which is based upon very meager facts.
The statement of counsel that the facts in this case are not as strong as in the case of Phenis v. State, supra, and Lake v. State, supra, is true, and both of those cases were reversed.
For the reasons above stated, the judgment of the county court of Choctaw county is reversed and remanded.
JONES, J., concurs. DOYLE, J., not participating.
On Rehearing.