#### Clarence Jefferson RUCKMAN, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12052.

Criminal Court of Appeals of Oklahoma.

Hendon & Hendon, Shawnee, Pat Brogan, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

JONES, Judge.

The defendant, Clarence Jefferson Ruck-man, was charged by an information filed in the County Court of Pottawatomie County with the offense of driving an automobile on a public highway while under the influence of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $250 and has appealed.

Two assignments of error are presented. First, the court erred in refusing to sustain *279defendant’s motion for mistrial. Second, the court erred in giving instruction number four.

In connection with the-first assignment of error, the record shows that the county attorney in his opening statement to the jury made the following remark: “He (defendant) also stated to Trooper McDaniel that he had been arrested for this same offense in Holdenville, and he would like to have this charge reduced to reckless driving.” At the time this statement was made the record discloses the following occurred:

> “By Mr. Claude Hendon: Just a minute, will you gentlemen please come up to the bench. (Whereupon the following proceedings were had outside the hearing of the jury.)

> “By Mr. Hendon: At. this time comes the defendant, Clarence Jefferson Ruck-man, during the course of .the County-Attorney’s opening statement, wherein the County Attorney stated in substance to the jury that, a certain conversation was had between the defendant and one of the patrol officers on the night of thé purported arrest, the defendant stating, to the. witness that he had once been in the same kind of a mess of trouble before this, and we ask the Court to direct and declare a mis-trial for the son that '-the statement is -prejudicial; it is an act on the part of the prosecution to place in issue the reputation and character of the defendant before the .defendant himself .had placed the same, at issue, and that it is in violation of his priviliges and immunities afforded-, under the law, the constitution and the bill of rights.

> “By the Court: The motion for mistrial is overruled.

> “Mr. Hendon: To which ruling of the court the defendant excepts. ' (And whereupon the following proceedings were had in the presence of the jury:)

> “By the Court: The County Attorney is hereby admonished to refrain from further reference to such' prior con-viction in his opening statement, and the County Attorney-is directed toinot interrogate any witness upon'such prior!: conviction prior to thetimé:that.the-de-c:; fendant'may place his own good-char-T,' acter in-issue in this case. - , ■

> *■*“Mr. Henry: To which ruling-..the State excepts and hereby gives notice!: of appeal to the Criminal Court of Ap-i. peals on a reserved question of law. :

> “By the Court: You jufofs-are hereby directed to disregard the last state-merit made by the County Attofhey'-j'u'st'' bef-o're the recess to the effect that-the witness, McDaniel, would’'testify.'as: to-a: previous'or former conviction'of this defendant on the charge of'driving automobile while intoxicated1 in Hughe's'-County,- you are hereby admonished'1 to disregard that statement ■ by1-' -Cotinty Attorney, and to put frote1 your minds 'any consideration of ;the defendant’s statement to the officer"-relative 'to- á former or prior conviction'on identical charge.” ■: 1

In Call v. State, 39 Okl.Cr. 264, 264 P. 643, hhis court held:

> .: “An- opening statement lis tp,advise. the jury concerning the questiqps; .fact involved, so • as to .prepare thei,r minds for the. evidence to be heard, and facts should not be stated which párinot be proved. .■ ,. . ..

> “The criminal, record of a defpndpnt. is not.a matter to be referred to,in; the prosecuting attorney^ opening; ment. . . ' ■ , : , . — .. ,

> “The- remarks'- of 'the prosecuting-’ at-torriey in- opening statement that .the. testimony would, show' that-'the defend-ánt had been convicted of forgery, and', 'while--serving sentence, Was• convicted of manslaughter^ held prejudicial 'ror.”. • ■ ■'. . ■• , ...

We- think the feanner in which this-matter was handled emphasized the- alleged prior conviction of -the accused.. The .trial court was attempting to prevent-error .from getting into the record but the caution which he exercised caused him to make ■ statements which had the effect of emphasizing- to the jury that defendant had a forteer 'convic*280tion on a similar charge. As to whether this conduct on the part of the County Attorney and County Judge constitutes reversible error, it is necessary to consider the facts as established by the evidence.

Two highway patrolmen testified that as they were proceeding on the highway just east of McLoud, they saw an automobile on the wrong side of the road and as they approached it drove across the road to the other side. They flashed their red light, gave a warning signal and the car in question which was being driven by the defendant stopped off the shoulder on the correct side of the road. The officers testified the defendant was intoxicated. No evidence was offered on behalf of the accused and so far as the record discloses, there seems to be no question of the defendant’s guilt. Under such a state of the record we do not feel that justice would be served by reversing the case for a new trial, but rather we feel that the jury because of the improper proceedings during the opening statement of the County Attorney gave the accused more punishment than they would have meted out to him if the statements as to an alleged prior conviction had been omitted.

We find no substantial merit to the second assignment of error for the reason that the erroneous matter complained of was inserted in the instruction at the request of counsel for the defendant. This was the statement' in the instruction pertaining to the revocation of the license of the accused by the Commissioner of Public Safety in case of a conviction. We agree that the insertion of this matter in the instruction was improper, but it was requested by defendant’s counsel, was favorable to him, and he is not now in a position to complain of such error.

There was no collision involved and defendant apparently without any difficulty stopped his automobile when the patrolmen flashed a warning signal. The facts are not so aggravated as to convince us that the jury would have given a jail sentence if they had not been improperly advised by the County Attorney that defendant had been in similar trouble. The judgment and sentence of the County Court of Pottawatomie County is accordingly modified by reducing the sentence from 30 days in the county jail and a fine of $250 to a fine of $150 and the judgment and sentence as thus modified is affirmed.

POWELL, P. J., and BRETT, J., concur.