Carson v. State

1972 OK CR 48, 493 P.2d 1397

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 16, 1972
• Docket: A-17085
• Status: Published

Opinions

BUSSEY, Presiding Judge:

Olivee Carson, hereinafter referred to as defendant, entered pleas of guilty in the District Court of Pittsburg County, Oklahoma to the offenses of Forgery, Second Degree and Uttering a Forged Instrument, on September 17, 1970, and received two (2) two-year suspended sentences. Said suspended sentences were ordered revoked on June 28, 1971, and from said Orders of Revocation, a timely appeal has been perfected to this Court.

At the revocation hearing, Bill Grimes testified that he was the defendant’s probation officer. One of the court-imposed conditions of the defendant’s suspended sentence was that he was “not to loiter in or around or about beer parlors, and not to partake of intoxicants.”

Officer Fuller of the McAlester Police Department testified that at approximately midnight on May 22, 1971, he answered a call to an address in McAlester. He observed the defendant in the street with about five or six people facing him. One of the persons advised the officer in the defendant’s presence that the defendant had attempted to force his way into his home, and when he requested the defendant to leave, the defendant engaged in an argument, and then eventually left and went to another residence. After ascertaining that it was not “actually a burglary-type entry, the officer, upon observing the defendant’s condition, placed him under arrest for public drunk. He testified that the defendant was slightly intoxicated, he could smell alcohol on his breath, his speech was somewhat slurred, and he had a slight waver while standing. Defendant advised the officer that he just wanted to talk to the people, and let them get acquainted with him. Defendant stated that he had had two drinks, but that he was not drunk.

Officer Gallmore testified that he went to the scene with Officer Fuller, and his testimony did not differ substantially from that of the witness, Officer Fuller.

Deputy Sheriff Staples testified that he observed the defendant on the evening in question, and the defendant was slightly intoxicated. In response to a question by the court, the officer testified that if he had seen the defendant in that condition, he would have arrested him for being drunk in a public place.

For the defense, Ora Jones testified that she was the defendant’s mother, and that on May 8, 1971, she filed a complaint in the city court of McAlester against the defendant for breaking and entering and for burglary, second degree. She subsequently asked the court to withdraw the charges when she ascertained that the refrigerator that the defendant had taken had been given to him by her mother.

The defendant testified that he was in the neighborhood to discuss a job possibility. As he was returning home, he happened to think about some of the associates that lived in the area who had some hound dogs; he stopped at the first house, knocked on the door, and asked two young boys “if the man of the house was there.” They said, “No,” and acted frightened, so he walked on down to the next house and talked to another gentleman. This man appeared to be very angry, and the defendant walked back to the street. The second man appeared in the street with a gun in his hand, whereupon the father of the boys appeared. Defendant testified that he was attempting to explain to the persons that he was there for peaceful reasons and he attempted to apologize. The officers drove up and heard part of the conversation, then placed him under arrest for public drunk. He testified that he had not been drinking alcoholic beverages, but had consumed some herb medicine and aspirin. He testified that he was not drunk, and had been abiding by every rule read to him by the Probation and Parole Department.

Defendant argues under this proposition that the trial court erred in revoking his suspended sentence as the basis for the revocation of the suspended sentence, since the public drunk charge was still pending against him in the District Court of Pitts-burg County. We are of the opinion that, notwithstanding the fact that the public drunk charge has not been adjudicated, there was sufficient evidence before the court to justify the court’s revoking the defendant’s suspended sentence. All cases to the contrary are expressly overruled.

The orders revoking the defendant’s suspended sentences are affirmed.

BRETT, J., concurs in part; dissents in part. SIMMS, J., specially concurs.