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Luster v. State12/2/1987
designed to deal with this situation, it follows that it intended the statute to be used when applicable. It is a long established rule of statutory construction that a specific statute will govern over a statute dealing with more general matters. In Re Cummings' Estate, 196 Okla. 377, 165 P.2d 140, 142 (1946). Holder v. State, 556 P.2d 1049, 1053 (Okla. Crim. App. 1976). Moreover, this Court has interpreted statutes under the motor vehicle title as precluding prosecution under the more general criminal statutes. For example, this Court has held that the negligent homicide provision in 47 O.S. 1961 § 11-903 [47-11-903] precluded prosecution for second degree manslaughter under 21 O.S. 1961 § 716 [21-716], when a motor vehicle is involved. Atchley v. State, 473 P.2d 286, 290 (Okla. Crim. App. 1970).
This Court is aware that a first conviction under 47 O.S.Supp. 1983 § 11-904 [47-11-904] is a misdemeanor, punishable by not more than one (1) year in the county jail and a fine of not more than Two Thousand Five Hundred Dollars ($2,500). Id. However, the legislature must have been aware of the seriousness of the offense, and set the punishment it saw fit. This Court must abide by that decision.
In light of the foregoing discussion the following becomes evident. It is one thing when two statutes are applicable, and the State has a choice in deciding under which statute it wants to charge. See Wilson v. State, 649 P.2d 784, 786 (Okla. Crim. App. 1982). It is something entirely different when it picks a charge that is not applicable. Therefore, the motion to quash the information should have been sustained. This case is hereby REVERSED and REMANDED for proceedings consistent with this opinion.
BRETT, P.J., concurs.
BUSSEY, J., dissents.
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