[11] I respectfully dissent to the conclusions reached in this decision, because — under the facts of this case — I believe defendant's demurrer to the information should have been sustained.
[12] Clearly, the offense, driving under the influence of intoxicants and being in actual physical control of a vehicle while under the influence of intoxicants, are two separate and distinct offenses. See: Parker v. State, Okla. Cr. 424 P.2d 997 (1967). The information in this case listed both offenses as charges against the defendant, and defendant contended the information was faulty because of duplicity. I believe it was.
[13] 22 O.S. 1971 § 404[22-404], specifies that the information must charge but one offense; but that section also allows the listing of more than one offense under separate counts, when "the proof may be uncertain as to which of two or more offenses the accused may be guilty of." In the instant case the prosecutor did not elect to file his information under these provisions, but instead he charged both offenses. From the very beginning the defense counsel objected to the information, because of duplicity; but his objections were overruled. When the state concluded its evidence, defense counsel entered his demurrer to the information, again citing its duplicitious condition. The trial court denied the demurrer and required defendant to present his case, over defendant's objections.
[14] Finally, as if the light of wisdom shone all around, at the conclusion of defendant's evidence the court permitted the state to amend the information to conform to the state's proof, by deleting the second charge of being in actual physical control of a vehicle while under the influence of intoxicants. When the information was amended — at that late stage of the proceedings — the jury was instructed and returned its verdict finding defendant guilty of driving while under the influence of intoxicants.
[15] I readily concede that 22 O.S. 1971 § 304[22-304], allows the amending of an information in manner of substance or form at any time before the defendant pleads; and the information may be amended after plea on order of the court where it can be done without material prejudice to the rights of the defendant. See: Teague v. State, 64 Okla. Cr. 369, 81 P.2d 331 (1938). But I do not believe that the proper administration of justice allows the prosecutor "to lay behind a log" during the entire proceedings, and then select the charge his proof seems to indicate, unless he proceeds under 22 O.S. 1971 § 404[22-404], in which instance the jury selects the charge the proof seems to sustain. But in this case the trial court permitted the prosecutor do indirectly that which he is denied by statute; and this Court permits the abuse of discretion to stand under the guise that "the information contained merely surplusage of an included element of the offense, operating a vehicle while intoxicated and was not duplicitous." I do not agree.
[16] I can accept the contention that had defendant not entered an objection he would have waived any right to complain; but what disturbs me is that defense counsel objected to an obvious duplication of offenses and each time his objection was denied. I believe the rules of our adversary system of jurisprudence intends that the rules of procedure should work with reasonable equality for both the prosecution and the defense. We hold that the defendant is bound by his attorney's actions, so as in this case, I believe the state should also be bound by its prosecutor's inept decision.
[17] Therefore, I believe this conviction should be reversed and remanded for a new trial. *Page 675