text:
    Ex parte JACK RAY.
    No. A-11096.
    Oct. 20, 1948.
    (198 P. 2d 756.)

      Lee Williams, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original action commenced by the petitioner, Jack Ray, to secure his release from confinement in the State Penitentiary.

The verified petition alleges that the petitioner entered a plea of guilty in the district court of Washita county on October 4, 1940, to a charge of murder, and was sentenced to serve a term of life imprisonment in the State Penitentiary; that pursuant to such judgment and sentence, the petitioner was incarcerated in the State Penitentiary, and is now incarcerated in the penitentiary serving said sentence; that at the time of the arraignment and plea of gililty of the accused, he was a minor 17 years of age; that he was inexperienced in court proceedings and only had a third grade education; that no legal counsel was provided for the accused at the time of his arraignment and plea, and accused was not fully advised of the rights accorded him by the statutes and Constitution of the State of Oklahoma, and for that reason his confinement is without due process of law, and he is entitled to his discharge from imprisonment.

At the hearing before this court, the facts disclosed that the petitioner was born August 16, 1923, at Valley View, Tex., and received only a third grade education; that throughout the early boyhood of petitioner, he was in constant association with narcotic peddlers, thieves, and murderers; that in addition to the murder of George Goodwin on August 6, 1939, at Cordell, Okla., for which crime he was imprisoned to serve a life term in the penitentiary, and which sentence is the subject of this habeas corpus proceeding, the petitioner had participated in two other murders in addition to other lesser crimes. At the time the defendant was arrested for the commission of the murder of George Goodwin, he was serving a sentence in the State Reformatory at Granite, Okla., for the commission of another crime; that while in the reformatory he confessed to having shot the said George Goodwin, deceased, with a 45 calibre automatic pistol, and was accordingly returned to Washita county for arraignment and trial on a charge of murder. The accused was arraigned before the magistrate on the 30th day of September, 1940, at which time he waived his right to a preliminary hearing and was ordered held to await, trial in the district court of Washita county. On the same day, an information was filed in the district court of Washita county, charging the petitioner, Jack Ray, with having committed the crime of murder. Pour days later on October 4, 1940, the defendant was arraigned in the district court of Washita county. Both of his parents were present at the arraignment. The information was read at length by the county attorney. The district-judge then inquired as to whether the accused had counsel, to which the accused replied chat he had none and did not desire counsel as he was guilty and knew what plea he wanted to make. The court then inquired as to the age of the petitioner and upon being informed of his age, inquired as to whether his parents were present. The parents being present in the courtroom, the trial judge discussed the matter of counsel to represent the accused with the parents, and they informed the court that they had thoroughly discussed the case with the defendant and had also consulted an attorney concerning the charge against the accused, and that since the defendant was guilty of the commission of the crime that he did not want an attorney, and that they did not feel that an attorney was necessary. The trial court then informed the accused and his parents that upon a plea of guilty or conviction by a jury of the crime of murder, the punishment fixed by law was either life imprisonment in the State Penitentiary, or death in the electric chair, and that if the accused' entered a plea of guilty, it was mandatory on the court to sentence him to either imprisonment in the State Penitentiary for life or assess his punishment at death in the electric chair. The court then advised the defendant that he had a right to trial by jury and that it was not necessary for him to enter his plea of either guilty or not guilty, but that the trial court would postpone further arraignment for such reasonable time as would give him time to consult with an attorney and determine just what plea he wished to make to the charge set forth in the information. The defendant then stated that he understood the nature of the charge against him and knew what plea he wanted to enter and did not desire any additional delay in the proceedings for the purpose of entering his plea. The defendant then entered his plea of guilty and asked that sentence be pronounced at once. The trial court thereupon sentenced him to serve a term of life imprisonment in the State Penitentiary, and he was committed to that institution. The term of imprisonment, which the petitioner was serving in the State Reformatory at Granite at the time he was apprehended on the murder charge, did not expire until January 6, 1942. At the expiration of that term and on that date, he commenced the serving of this sentence of life imprisonment.

This proceeding then resolves itself into the one question. Did the district court of Washita county lose jurisdiction to pronounce sentence against the accused upon his plea of guilty by reason of the failure of the court to appoint counsel for the accused?' Petitioner cites and relies as Ms authority the cases of Ex parte Cook, 84 Okla. Cr. 404, 183 P. 2d 595; Ex parte Cornell, 87 Okla. Cr. 2, 193 P. 2d 904, 906.

In Ex parte Cornell, this court held:

“In a capital ease, the trial court should assign counsel to represent youth seventeen years of age, upon his arraignment before receiving his plea, as a necessary requisite of due process of law, even though said youth states to the court that he waived his right to counsel.”

If we were considering just the naked rule of law stated in the above quotation, it is apparent that the sentence against the accused would have to be vacated. However, in the same opinion in which the abové statement appears this court stated:

“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

Each case must be determined after a hearing and an investigation of all the facts and circumstances surrounding that particular case, and the writ of habeas corpus should not be used by a court to release one from the consequences of a sentence to imprisonment in the State Penitentiary, where the facts show that the accused thoroughly understood the nature and consequences of his plea and effectiyely waived his constitutional right to the assistance of counsel.

In Ex parte Cook, supra, and Ex parte Cornell, supra, neither of the parents of those defendants were present in court at the time they received their sentences which were pronounceed upon the date the information was filed against them. In the instant case, the parents of the petitioner were present and advised the court that they had consulted with an attorney concerning the charge against their son, and that in discussing the matter with their son and with the attorney, it was evident that the best that the accused could hope for, under the record, was a term of life imprisonment in the State Penitentiary. There has been no question raised as to the guilt of the accused. In fact, in his verified petition filed herein, he states that he shot and killed George Goodwin with a 45 calibre automatic pistol. At the hearing before our court, it was disclosed that he shot and killed the deceased, who was a truck driver, in an attempt to rob him. It having been shown by the evidence that counsel had been consulted by accused and his parents, prior to the time of the arraignment of the accused in the district court, it cannot be said that he was denied the assistance of counsel.

Another thing distinguishes the record in the instant case from the facts in Ex parte Cook, supra, and Ex parte Cornell, supra. In the instant case, over eight years have elapsed since the defendant was sentenced and over nine years have elapsed since the crime was committed. In the Cook and Cornell cases, shortly after the commitment of those two defendants to the penitentiary and after their parents had learned of their plight, action to secure their release by habeas corpus was instituted. Here the accused, who is now 25 years of age, and his parents have acquiesced in the sentence pronounced against the accused, and by their conduct have remained silent for these eight years without making any effort to set aside the sentence of the accused. It is apparent from a reading of the petition that the petitioner is basing his hope for a vacation of the judgment solely upon the rule of law hereinabove first quoted from Ex parte Cornell, supra, During all the period of time from October 4, 1940, which was the date the sentence was pronounced against the accused, up to the time of the filing of his verified petition herein, the state was bound by the action taken in sentencing the accused to prison. The only person who could complain as to an alleged deprivation of his constitutional rights was the defendant. He was the only one who could demand a new trial or ask that the judgment be vacated. Ex parte Meadows, 71 Okla, Cr. 353, 112 P. 2d 419. It would be a profound weakness in the administration of justice, indeed, if a court would allow one accused of crime to enter a plea of guilty and then, after waiting for years until the state’s witnesses are scattered or dead, or their memory about the events connected with the crime had become dimmed by the years to where the state could not effectively present the facts in connection with the commission of the crime, claim that he would be entitled to his discharge because in the first instance he was allegedly deprived of some of his rights. Under such circumstances, this court has adopted the rule that the right to relief by habeas corpus has been lost by laches where the petition for habeas corpus is delayed for a long period of time. Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; Ex parte Motley, 86 Okla. Cr. 401, 193 P. 2d 613; Ex parte Snow, 84 Okla. Cr. 423, 183 P. 2d 588.

It should be emphasized that in denying the writ of habeas corpus in the instant case, we are not deviating from the rule announced in Ex parte Cornell, supra, that it is the duty of the trial court, upon arraignment of a minor defendant upon a capital case, to assign counsel to represent him before receiving his plea, whether the same is requested or not. In the instant case, the facts disclose that the defendant had the benefit of the assistance of counsel, that he also made an intelligent waiver of his right to counsel at time of arraignment, and that his application is further barred by laches on his part in bringing the action.

The writ of habeas corpus is therefore denied.

BAREFOOT, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    VIRGIL PINKSTON McCANN v. STATE.
    No. A-10895.
    Oct. 27, 1948.
    (198 P. 2d 1010.)

      Lee Williams of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Virgil Pinkston Mc-Cann, was charged in the court of common pleas of Oklahoma county with the illegal possession of intoxicating liquor; a jury was waived, the defendant was tried, found guilty and sentenced to serve 30 days in the county jail, and pay a fine of $300, and has appealed.

It is contended that the court erred in overruling the motion to suppress evidence.

At the time the motion to suppress evidence was presented, Jack Caldwell, a police officer of Oklahoma City, was called as a witness by the defendant. He testified that he was the officer who signed the affidavit to procure the search warrant and that he served the warrant the next day after it was issued; that he went to the place described in the warrant, but found no one there; that the door was unlocked, so he tacked the warrant to the door, looked inside of the room and found 42 pints of whisky.

He further testified:

“Q. Bid you know who, of your own knowledge, who lived there in that room? A. Yes, sir. Q. Who? A. Yirgil McCann.”

Counsel then sought to question the officer as to the source of his information for the positive statements set forth in the affidavit, but the trial court correctly sustained objections to such examination.

The affidavit and warrant were introduced in evidence.

The defendant also testified at the hearing on the motion to suppress evidence that the whisky seized by the officers belonged to him, and that shortly after the raid he went to the police station and paid a $20 fine; that he later served five months in the county jail and thought that he was cleaning up all of his old liquor eases when that was done. However, on cross-examination, he admitted that he had not served any time in jail or disposed of the charge involving the specific liquor in question. The defendant contended that the whis-ky was his for his own personal use and not for sale, but to offset this, the county attorney introduced in evidence the record of 24 prior convictions sustained by the accused for violations of the liquor law.

It is contended that the affidavit for the search warrant was insufficient to justify the issuance of the warrant for the reason that it failed to allege that the premises in question were occupied by Virgil McCann as a private residence.

We find no merit in this contention. The affidavit was well prepared. It alleged that the premises to be searched was a place of public resort, and further stated that affiant knew of his own personal knowledge that Virgil McCann unlawfully had intoxicating liquors at said place for the purpose of sale. There were many other allegations of fact which were sufficient to authorize the justice of peace to make a finding of probable cause for issuing a search warrant for the premises described in the affidavit.

In Buckley v. State, 69 Okla. Cr. 285, 102 P. 2d 619, this court held that where one uses his home as a place of storage of intoxicating liquors for the purpose of violating the liquor law of the state, or if the home is used for permitting persons to come to the home to purchase liquors, either to be consumed on the premises or to be carried away, it then becomes a place of public resort.

Although there is no statement in the affidavit that the place to be searched was the private residence of the accused, there were sufficient evidentiary facts set forth in the affidavit which would have been sufficient to have authorized the issuance of a warrant for the search of a private residence. Wagner v. State, 73 Okla. Cr. 317, 121 P. 2d 322.

The judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    Ex parte EUGENE D. FISHER.
    No. A-11123.
    Nov. 3, 1948.
    (199 P. 2d 238.)
    Eugene D. Fisher, petitioner, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   BAREFOOT, P. J.

This is an original proceeding in habeas corpus, instituted by the petitioner, Eugene D. Fisher, to secure his release from confinement in the State Penitentiary.

Attached to the petition is a copy of the judgment and sentence, and subsequent to the filing of the petition, the petitioner filed an affidavit in support thereof.

This petitioner comes into this court without an attorney, his petition and the affidavit having been prepared and filed by him.

The verified petition alleges, in substance, that on February 13, 1946, the petitioner was sentenced to serve a term of 25 years in the State Penitentiary by the district court of Bryan county on a charge of rape in the first degree, allegedly committed upon his minor stepdaughter in the month of December, 1945. Attached to his petition is a copy of the judgment and sentence, and what is termed a “supporting brief.” This brief contains the statement: “The Hon. Victor C. Phillips represented the State as County Attorney, and your petitioner was not represented by counsel.” In the affidavit filed by petitioner, he states: “The court appointed an attorney to represent me, and this attorney entered a plea of guilty for me.” And further on: “And my court-appointed lawyer recommended twenty to twenty-five years for me.”

This court is very liberal in construing petitions filed by inmates of the state institutions which are prepared without the advice and assistance of an attorney. Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte Cassidy, 83 Okla. 159, 174 P. 2d 271; Ex parte Smith, 84 Okla. Cr. 446, 184 P. 2d 118; Ex parte Allen, 86 Okla. Cr; 48, 192 P. 2d 289.

The only point raised is that petitioner was without counsel, and that the county attorney had agreed to recommend a sentence of five (5) years upon a plea of guilty, and failed to do so.

The general rule of this court, as often announced, is that where a prisoner is in custody under sentence of conviction and seeks his discharge on habeas corpus, the inquiry is limited to the questions of whether or not the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and if the court had jurisdiction to render the particular judgment. Ex parte Thomas, 56 Okla. Cr. 258, 37 P. 2d 829; Ex parte Maynard, 79 Okla. Cr. 215, 153 P. 2d 505; Ex parte Wade, 82 Okla. Cr. 215, 167 P. 2d 920.

Here petitioner entered a plea of guilty in the district court to a charge of rape in the first degree. No attempt was made to appeal from the judgment and sentence. According to his own admission, he was represented by counsel, who recommended a sentence of from 20 to 25 years. Petitioner could have been given the death penalty, or life imprisonment, under the terms of the statute under which he was prosecuted, 21 O. S. 1941 §§ 1114 and 1115, and the minimum punishment provided by the statute is imprisonment for 15 years.

After an examination of the record before us in this case, it appears conclusively that the district court of Bryan county had jurisdiction of the person of the accused, and.of the offense charged, and there is nothing before us to show lack of jurisdiction in the trial court to pronounce the judgment and sentence.

The petition for writ of habeas corpus is denied.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    JOHNIE HOWARD v. STATE.
    No. A-10855.
    Nov. 3, 1948.
    (199 P. 2d 240.)

      Tolbert, Gillespie & Cunningham, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant below, Johnie Howard, was charged, tried, convicted of the crime of second degree manslaughter, and sentenced to 90 days in jail and to pay a fine of $500.

The information upon which this conviction was predicated, in substance, alleged that the defendant, on September 23, 1945, in Kiowa county, Okla., did wrongfully, feloniously and with culpable negligence, so drive, his 1934 Buick sedan automobile at a speed greater than would permit him to stop within the assured clear distance ahead having due regard to the traffic, surface and width of the highway and the condition of said highway and the physical condition of the defendant, and as a consequence of said act, in so operating the said automobile, he collided his said automobile with one driven by Emil Koebelen. The information further alleged that Ethel Karan Koebelen, an infant 11 months old, a passenger in her father’s automobile, was killed as a result of said collision.

The information clearly stated a cause of action, and it was not error for the court to overrule the defendant’s demurrer.

The real question presented by the record is: Under the law, is the information supported by sufficient competent evidence to sustain the conviction? The evidence at the trial discloses that the collision occurred at the intersection of State Highway No. 44 running north and south, and old State Highway No. 9 running east and west. The south approach to the intersection is uphill, the crest of the hill being between 225 to 275 feet north of the intersection. Leading into Highway No. 9 coming from the south is a lazy curve turning in a northwesterly direction, made lazy or extended by reason of the fact that the fence running north and south and west of the highway and south of the intersection sets back a distance of 22 feet further west of Highway No. 44 than does the fence line running north and south and west of Highway No. 44 north of the intersection. The right of way between fence rows south of the intersection is 101 feet wide. The traveled highway in the center is 30 feet wide. North of the intersection the right of way is 60 feet wide with the traveled highway in the center 30 feet wide. There were no warning signs north of the intersection or at the crest of the hill.

In relation to the facts surrounding the accident, the record discloses that the defendant was estimated to be driving at a speed varying from 45 to 65 miles per hour some distance before arriving at the scene of the accident, but upon being admonished to slow down the sworn positive testimony of William Lee, state’s witness, Howard, himself, the defendant, and Joe Kimpton, defendant’s witness, he was going 40 to 45 miles per hour at the time of the collision. Mr. Koebelen testified he was coming on Highway No. 44 from the south headed north approaching the lazy turn into Highway No. 9 which swings off in a northwesterly direction and finally extending out into Highway No. 9 due west.

Mr. Koebelen said he was driving about 30 to 35 miles per hour. Just before he started his left-hand turn into the south prong of the Y lane leading from Highway No. 44 south of the intersection into Highway No. 9 he slowed down to about 8 or 10 miles per hour. Mr. Koe-belen said he saw no glow of the automobile lights as it made the crest of the hill coming from the north towards him. He said that he saw Johnie Howard’s automobile just as it “got off the west side of the highway and came into the right hand door glass.” He estimated Howard was driving 60 to 65 miles per hour. Such an estimate under these conditions we believe is most unreliable. It is apparent that he did not have his eyes on the road to the north, and was paying no attention to the traffic to the north until Howard’s automobile suddenly loomed up at his right-hand front door.

The highway patrolman, based upon the length of-the skid marks (60 feet from the point where the brakes were applied to the point of impact), testified Howard must have been going 60 to 65 miles per hour. This testimony at best is an estimate, based upon skid marks made on a graveled road in a 1934 Buick sedan, and is at best under the conditions speculative. He further testified that the collision occurred between the fence rows on the north and south Highway No. 44. He said that it was dangerous for a man to proceed in the lazy curve at such a slow cate of speed. He further said that the Koebelen automobile made an improper left-hand turn before reaching the intersection. In other words, he took the lazy turn which lead off of Highway No. 44 into Highway No. 9 before he reached the intersection.

Ethel Mae Koebelen, the mother of the deceased Ethel Karan Koebelen, testified that she was rendered unconscious in the collision, remained so for three weeks, and all she knew about it was what she had been told since.

All of the witnesses, William Lee for the state, William Brown for the state, Johnie Howard, the defendant, all colored, and Mr. Joe Kimpton, white, witnesses for the defendant and occupants of the Howard automobile, testified, in substance, that as they came over the crest of the hill north of the intersection, the Koebelen automobile, coming from the south going north, began to pull to its left into the center of the road at the same time Johnie Howard applied his brakes and pulled to his right in an effort to avoid colliding with the Koebelen automobile. They testified that the accident occurred in the north and south highway, No. 44, as did the highway patrolman, as hereinbefore pointed out. That Mr. Koe-belen left his side of the road, and pulled over on Johnie Howard’s side of the road, that after Howard pulled his automobile to the right in an effort to miss the Koe-belen automobile, he could not have missed the Koebelen automobile even though he had pulled his automobile to the left of the Koebelen automobile. All of them testified that Johnie Howard was attempting to pass the Koe-belen automobile on his right. In attempting to do this he passed over the untraveled portion of the intersection in a southwesterly direction and the two automobiles collided resulting in the death of the infant child of Mr. and Mrs. Koebelen. The foregoing constitutes, in our opinion, a fair analysis of the evidence as revealed from the record.

The record discloses that defendant Johnie Howard had two bottles of beer about 3:30 in the afternoon at Hobart, and two small drinks of whisky about 4:30 p. m., while he and other parties were on their way to Sentinel, Okla. The accident occurred about 9:00 or 9:30 p. m., approximately five hours after Johnie Howard had had his last drink. No whisky was found in the automobile and from an evidentiary standpoint the record fails to establish the defendant was under the influence of liquor at the time of the collision. We might also observe that the county attorney did not. believe he was under the influence of liquor or he would have undoubtedly so alleged in the information. This he did not do. However, on the trial of the case the state attempted to show that the defendant Johnie Howard was under the influence of liquor at the time of the collision. To this attempt the defendant objected strenuously. The objection, however, was to no avail, and rightly so. This court has so held in Hall v. State, 80 Okla. Cr. 310, at page 314, 159 P. 2d 283, at page 286, as follows, to-wit:

“The defendant was charged with driving in a reckless and negligent manner. If he was drunk or under the influence of intoxicating liquor at the time this would be a circumstance for the consideration of the jury as to whether he was driving in a reckless and careless manner, and while it may have proved the commission of another offense, it also proved a fact which the jury would have the right to know in coming to a conclusion as to whether the defendant was driving in a careless and reckless manner, and in violation of the statute under which defendant was charged. Often the evidence is so closely connected and a part of the res gestae that the State is permitted to offer evidence though it proves the commission of another crime. Lizar v. State, 74 Okla. Cr. 368, 126 P. 2d 552; Zewalk v. State, 73 Okla. Cr. 202 [203], 119 P. 2d 874; Johnson v. State, 70 Okla. Cr. 270, 106 P. 2d 149.”

See, also, in this connection Bouyer v. State, 57 Okla. Cr. 22, 43 P. 2d 153.

The jury apparently did not believe defendant was under the influence of intoxicating liquor at the time of the collision herein involved or they would have assessed a much greater penalty than the $500 fine and 90 days in jail. Though the attempt was without probative success, the evidence in relation thereto was admissible.

The decisive issue herein involved is as contained in one assignment of error, “that the verdict of the jury and the judgment of the court is contrary to both the law and the evidence.” This contention is predicated upon the rules of the road as defined in Title 69 O.S.A. 1941 § 583, and particularly Rule No. 1, which reads as follows, to wit :

“Rule 1. Vehicles in meeting each other shall keep to the right of the center of the road. * * *”

And Rule No. 4, which reads as follows, tO' wit:

“Rule 4. All vehicles turning to the left into another road shall pass around the center of the intersecting road before turning. * * *”

The state relies upon the provisions of Title 47 O.S.A. 1941 § 92, which provides as follows:

“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. * * *”

Thereafter the statute makes the violation of the foregoing provisions a misdemeanor and provides punishment therefor.

When measured by the foregoing rules of the road, the case presents but one issue: Was the defendant guilty of culpable negligence in the operation of his automobile? Was it the failure of Mr. Koebelen to observe Rule No. 1 and Rule No. 4, Title 69 O.S.A. 1941 § 583, or was it the speed at which the defendant, Johnie Howard, was traveling in violation of the provisions of Title 47 O.S.A. 1941 § 92? The answer to these questions seems to us to be obviously clear. If Mr. Koebelen had not taken the short cut from Highway No. 44 into Highway No. 9 by taking the lazy curve and thereby cutting his corners short and placing himself in the wrong lane of traffic, but instead had observed Rule No. 4 and in turning to the left into Highway No. 9 had pulled up to the center of the intersection and had passed around the center of the intersecting road, Highway No. 9, before turning, and had he at the same time observed Rule No. 1, he would have been to the right of the center of the road and would not have been on the wrong side of the road as the record reveals he was at the time of the collision. Moreover, had he observed Rules Nos. 1 and 4, the Johnie Howard automobile would have passed him without this tragic occurrence, because the record reveals that Johnie Howard was at all times on the right side of the road. In this connection the record further shows that Howard endeavored to keep to his right in meeting the Koebelen automobile and to stay on the right side of the road and pass the Koebelen automobile on the right side. Moreover, it shows he did everything possible to avoid the collision when he saw Mr. Koebelen was on the wrong side of the road. The record reveals that Mr. Koebelen did nothing to prevent or avoid the accident, but, to the contrary, the first act precipitating conditions leading up to the collision was his violation of the rules of the road. This violation according to the record placed him on the wrong side of the road, and in violation of the law. In addition thereto, the record discloses he did not keep a proper lookout or do anything to avert the collision. He saw no glow of the Howard automobile lights over the crest of the hill. He saw nothing of the Howard automobile until it “came into his right hand glass door.” Under these conditions we can reach but one conclusion, that irrespective of the speed at which the Howard automobile was being driven, Mr. Koebelen’s failure to observe the rules of the road was the proximate cause of the collision. It was not the speed at which the defendant was operating his automobile, or his inability to bring it to a stop within the assured clear distance ahead. Had Koe-belen kept his automobile on the right-hand side of the road and come to the center of the intersection before making the left-hand turn into Highway No. 9, it is our opinion that there would have been no collision. We are therefore forced to conclude that the record does not support the alleged acts or omissions on the part of the defendant, and that his conduct does not amount to culpable negligence. In this conclusion we are amply supported by the authorities. A case clearly in point is the comparatively recent case of Chandler v. State, 79 Okla. Cr. 323, 146 P. 2d 598, 599, an exhaustive opinion by Judge Barefoot, in which opinion the discussion substantially covers every aspect of this case. Therein this court said, among, many other pertinent and applicable things:

“Culpable or criminal negligence has often been defined by this court as ‘the omission to do something which a reasonable or prudent person would do, or the doing of something which such person would not do under the circumstances surrounding the particular case.’ ”

See, also, the following cases cited in said opinion: Nail v. State, 33 Okla. Cr. 100, 242 P. 270; Clark v. State, 27 Okla. Cr. 11, 224 P. 738; Kent v. State, 8 Okla. Cr. 188, 126 P. 1040; Wilson v. State, 70 Okla. Cr. 262, 105 P. 2d 789; Freeman v. State, 69 Okla. Cr. 164, 165, 101 P. 2d 653; Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412; Ansley v. State, 44 Okla. Cr. 382, 281 P. 160; Mayse v. State, 38 Okla. Cr. 144, 259 P. 277; Herndon v. State, 38 Okla. Cr. 338, 261 P. 378; Smith v. State, 46 Okla. Cr. 160, 287 P. 1103.

“It is generally recognized that to commit one a criminal, there should be a higher degree of negligence than is required to establish civil liability; the rule in civil liability being based upon the ‘preponderance of the evidence,’ while in criminal cases one must be convicted ‘beyond a reasonable doubt.’ * * *
“While the question of proximate cause is generally a question for the jury, in a criminal case the evidence should be such as to justify the finding that one was guilty of ‘culpable’ or ‘criminal’ negligence, where one is convicted of manslaughter in the second degree.
“Record examined and found that defendant was driving his automobile upon the proper side of the highway; that the automobile operated by husband of deceased, and in which she was riding, was upon the wrong side of the highway, and that by reason of the facts in the instant case, this was the direct and proximate cause of the collision.” Chandler v. State, supra.

In support of the rule on proximate cause, see the following cases cited at page 333 of 79 Okla. Cr. 323, 146 P. 2d 598, in Chandler v. State, supra: 99 A.L.R. 772; Dunville v. State, 188 Ind. 373, 123 N. E. 689; People v. Barnes, 182 Mich. 179, 148 N. W. 400; Shaw v. Wilcox (Mo. App.) 224 S. W. 58; State v. McIvor, 1 W.W. Harr. 123, 31 Del. 123, 111 A. 616; State v. Long, 7 Boyce, Del., 397, 108 A. 36; People v. Black, 111 Cal. App. 90, 295 P. 87; State v. Schaeffer, 96 Ohio St. 215, 117 N. E. 220, L.R.A. 1918B, 945, Ann. Cas. 1918E, 1137; Jackson v. State, 101 Ohio St. 152, 127 N. E. 870; Norman v. State, 121 Tex. Cr. R. 433, 52 S. W. 2d 1051; O’Mally v. Eagan, 43 Wyo. 233, 2 P. 2d 1063, 77 A.L.R. 582; Hiller v. State, 164 Tenn. 388, 50 S. W. 2d 225. In the Chandler case, supra, 79 Okla. Cr. at page 334, 146 P. 2d at page 603, the court drew a conclusion which is highly appropriate to the facts in the case at bar as follows, to wit:

“There can be no doubt, from the undisputed evidence in this case, that this collision would have occurred regardless of the rate of speed of defendant’s car, taking into consideration the rate of speed of the other car, and the distance between the cars at the time the danger was discovered.”

Precisely the same situation confronts us in the case at bar. This collision would have occurred regardless of the rate of speed of the defendant’s automobile. The reason the collision could not have been avoided was because Mr. Koebelen had placed himself on the wrong side of the road, in a position where the collision was inevitable and unavoidable. In the light of what we have herein-before said, the court erred in not sustaining the defendant’s motion for an instructed verdict. The evidence was entirely insufficient to make out a case of culpable negligence warranting a conviction of second degree manslaughter. This case must therefore be and is hereby reversed, with directions that the same should be dismissed.

BAREFOOT, P. J., and JONES, J., concur.