¶1dissenting.
¶2I respectfully dissent to this decision. The State relies on the contention that the defendant was intoxicated, becausé the doctor and the' officer testified that they thought the defendant was under the influence of intoxicants. Their testimony related that they “smelled” an alcoholic substance on the defendant. But, the defendant related that the nurse gave him something with which to wash his mouth free of blood, prior to the doctor and the officer’s arrival. It is interesting to note that neither the officer nor the doctor suggested a blood test for alcoholic contents. Nor did the officer consider the situation of sufficient significance to read to the defendant his alcoholic test rights. In addition, the investigating officer testified that his analysis of the physical facts revealed that the defendant was travelling at about thirty-five or forty miles per hour, when he entered the intersection. Also, no person was able to testify whether or not the light had changed to reflect that the defendant entered on a red light. The defendant testified that the light was green when he saw it. He explained the presence of the bottle of gin in the console of the Grand Prix automobile, as being left there by his wife.
¶3Certainly it is unfortunate when a death is caused by an automobile accident. But nonetheless, considerable risk is involved in the handling of an automobile, especially on the highway when the speed is considerable. As I view the facts in this case, there was no showing that this defendant was guilty of negligent homicide. Certainly had the defendant been intoxicated that testimony would be relevant, but the authorities failed to prove that fact beyond a reasonable doubt.
¶4Even accepting the definition set forth in Lester v. State, Okl.Cr., 562 P.2d 1163 (1977), to which I dissented, there was no showing that the defendant did not do what a reasonable and prudent person would have done. The investigation officer testified that the defendant laid down on the road 51 feet of skid marks. This indicated that the defendant attempted to stop his vehicle when he saw the deceased’s car enter the intersection. The driver following the deceased’s car was unable to state whether or not the turn arrow had changed to give the deceased’s automobile the right of way. Hence, as I view the facts of this case this conviction is premised upon considerable conjecture. The proof ordinarily required to establish the facts relied upon are missing. Therefore, I feel compelled to dissent to this decision.