"Patrolman Charles Annis testified that in his expert opinion defendant was drunk (R 22, 25). (This term is used herein exclusively to mean intoxicated by liquor, as distinguished from intoxication by drugs.) The Trooper testified that defendant was approaching him on the wrong side of a divided Interstate Highway (R 21), that upon descent from his vehicle defendant staggered on his feet, and that from defendant's speech and odor he appeared drunk (R 21, 22). Pursuant to a check of the automobile the Trooper found a `fifth bottle of Vodka * * * probably three-fourths gone' (R 22).

The Tropper further testified that defendant could not `motivate by himself. I had to take him by the arm and take him in a direct course to the patrol car. He was staggering out in the roadway' (R 24). The Trooper further testified that defendant admitted that the reason defendant was on the wrong side of the highway was that `he just had too much to drink' (R 25).

Highway Patrol Trooper C.G. Enterline testified defendant was `staggering — very unsteady on his feet. In fact, I led him by the arm from the patrol unit into the elevator' (R 36). Trooper Enterline further testified that there was a strong alcoholic odor on defendant's breath, and that his opinion as to the cause of defendant's condition was that defendant had been drinking (R 37).

Defendant's own witnesses substantiated defendant's propensity to `nip the bottle,' with Helen McClure, sister of the defendant, testifying that she would check defendant's bottles to `know how much he was drinking, sir.' (R 44). She testified she did this because she was interested in defendant (R 44). The defendant himself admitted drinking on Sunday, February 4, 1968, the day in question (R 50, 67).

The evidence set out above, together with all the other testimony at trial, clearly gave the jury ample basis for finding defendant guilty as charged, that is, guilty of operating a motor vehicle while under the influence of intoxicating liquor, Defendant does not object to the sufficiency of the evidence, and this court in Woods v. State, [92] Okl.Cr. [139], 220 P.2d 463, clearly held:

There is no problem here with a refused request for election, as the State clearly moved against the defendant on the liquor offense, not on drugs.

The issue of defendant's prescribed medications was before the jury at length; and they had every opportunity to decide that the drug issue had injected a reasonable doubt as to whether or not defendant had become intoxicated by liquor. The court's instructions 2, 4, 5, and 6 clearly outlined the jury's duty to apply the facts to determine defendant's intoxication by liquor.

As a matter of record, testimony on the issue of defendant's theory that he had actually been intoxicated by drugs and not liquor, was had at length and is to be found at pages 30, 38, 44-46, 53-57, 62-64, and 68. In the course of this testimony, by way of showing the issue of drugs was sufficiently before the jury, defendant's sister testified: (R 44, 45)

The defendant testified, (R 53)

In addition, defendant's exhibit No. 5 (R 56) was admitted. This exhibit was a letter from Dr. A. Stanley Bailey which read,

Defendant now objects because the bottles themselves were denied admission into evidence. The State had not controverted the fact of defendant's prescription, and had not controverted the defense contention that defendant had been taking the medications on the day in question. The State proved to the jury beyond a reasonable doubt that defendant had been intoxicated by liquor, and the bottles would be irrelevant on the key issue of whether the intoxication had been from drugs.

Had defense counsel been serious in the attempt to show the intoxication had occurred by drugs, he would have introduced expert testimony to that effect, and not bottles of pills more or less empty that may not have been consumed on the day in question.

Further, the existence of the bottles, the existence of the prescription, and the doctor's statement stood uncontroverted on the record. The vast amount of testimony to the effect that there were prescription bottles (undoubtedly the jury actually saw them when they were denied admission) would be sufficient to place the drug issue before the jury. The bottles themselves, if at all relevant to the critical issue of causation, would then have been cumulative, and objectionable as incompetent, irrelevant, and immaterial.

This court has held, consistent with the universally accepted proposition, that `The exclusion of evidence which is proved by other evidence, and is only cumulative, and would not change the results of the trial, is not error.' Phelps v. State, 64 Okl.Cr. 240, 78 P.2d 1068. Other cases on this point, cited in Phelps are Graham v. State, 25 Okl.Cr. 372, 220 P. 967; Addington v. State, 8 Okl.Cr. 703, 130 P. 311. In Addington this court said:

Here, as in Addington, the State did not contradict the testimony, sought to be cumulated — in the instant case, the physical existence of the bottles. The State further continues to maintain the physical existence of the bottles was irrelevant to the question of causation of the intoxication."