*1 HQ3 the omission of the 'error resulted "grounds of different
court to submit by the statute:”-
aggravation defined as victim reveals that the
The record complaint. sign the cutting did not and felt that the
He a reluctant witness drinking of
trouble was the.result He
whiskey himself and the defendant. Such is com forgiven the defendant.
mendable, provisions of 21 O.S. is § by person
“No act committed while. voluntary intoxication state
.in by reason, deemed less criminal having in such condition.” been State was one offense persons policy vio- demands .that Law and
lating law made to answer. destroyed victims of vio-
order if would be. prosecution.
lations could control remand- reversed and
Th« within the defendant be
ed with directions that trial, county
given at- a new and that
torney under O.S. file a information new or under O.S. 21. § decide, may to be held to the defendant charge.
answer such
Raymond DUCKWORTH, Emanuel Error, Plaintiff Oklahoma,
The STATE of Defendant . Error
No. A-12385. Appeals
Criminal Oklahoma.
Jan. 1957. Concurring Opinion
Specially Jan. 1957. Beauchamp, by C.-Beauchamp, & K. Jones April Rehearing Denied 1957. Duncan, plaintiff Jr., error. Williamson, Q. Atty. Gen.,' Mac Fred Hansen, Atty. .Gen., First Asst. . James Garrett, Atty. Gen., Asst. ... defendant in error. *2 purpose fied that the of the test was to
BRETT, Judge.
how
had
determine
much alcohol a
error, Raymand Emanuel
Plaintiff
Then,
objection,
his
blood.
over
the
below,
charged
was
Duckworth, defendant
question
say
was asked if would
whether
“it
County Court
by
in the
information
percentage
a man had a less
nec-
than was
Oklahoma,
of-
County,
with
Stephens
the
essary
say
to intoxicate or would it
on a
vehicle
driving a motor
fense of
objection
he
sustaining
had
more?”
in-
under
influence
highway while
n tothis
court
“I
trial
O.S.Supp.1955
93.
liquor,
toxicating
But,
ad-
think so.”
court did not
the trial
convicted, and
jury,
tried
He was
it,
monish
if
disregard
and
days in
thirty
period of
sentenced to a
had,
already
he
damage
been done.
Judg-
fine of
county jail and a
$200.
Removing
evidentiary harpoon
would
on the
entered
and sentence were
ment
repaired
injury.
not
was then
have
It
appeal has
jury’s
from which this
verdict
shown
was
that the defendant
the.state
been taken.
cocky
uncooperative
police
sta-
at the
con-
makes one decisive
defendant
The
tion
he would
submit to a test
because
not
trial n which,
herein,
that the
tention,
the effect
law,
permitted
under
he was
in evidence
permitting
court erred
refuse.
It is well to note one of the rea-
take
had refused to
defendant
fact
that
brought
sons
out in evidence on examination
permitted
further
test and
an intoximeter
complainant
thought
of the
was that he
evidentiary fact
what
to show
the state
defendant was drunk because he would not
disclosed.
such
would have
a test
apparent
take the intoximeter test.
It is
witness,
object
Ed-
that the
introduction
-this
complaining
Lee
oí
The state’s
just
impression
defendant
evidence was to leave
such
Wilson,
testified
ward
-
say
jury.
-with
cannot
not
automobile
We
it did
turned his
when he
was drunk
'
effect.
intersection
across an
to the left
path
signal, into
highway without
defendant’s
in relation to
The
automobile, precipitating a col-
of Wilson’s
the intoximeter test was that
refused
he
7, east of
Highway
lision on State
No.
him, “Well,
take it and
that the officertold
Duncan,
Wilson further testi-
Oklahoma.
words,
going
you up.”
I’m
In other
to lock
opinion the defendant
his
it was
fied that
you.
you
imprison
I
either
take it or will
was red faced and
he
was drunk because
It is well in this connection to
note
(The
test.
test
to take the
he refused
officer did not arrest the defendant at the
testimony.) Officer
in his
not identified
permitted
him
scene
the collision
the defendant was
Massey
testified
go
report
his
later
own and
to the
n brokenly,
spoke
un-
tongue,
thick
police
appears
if
station.
It
the of-
red,
feet,
steady
on his
face
ficer had believed the defendant was drunk
whiskey.
smelled of
collision,
presence,
scene of the
in his
at the
n
there,
he would
arrested him
taken
permitted the state
The trial
then
custody,
him
brought
him
into
chief,
show,
over the ob-
in its
police station.
defendant,
Mas-
that Officer
jection of the
clearly
foregoing
inad
if he would take
sey
defendant
asked the
in chief. As
missible
state’s evidence
that Duckworth
intoximeter
State, Okl.Cr., 302
we said in Barnhart
Exception
v.
was saved
to take it.
refused
P.2d
795:
Then,
this evidence.
.to
objection
excep-
to take the
defendant’s
.“He had refused
test as
over
repeatedly
tion,
question
right
if
to do. He had
asked
so
to take the
under
law to stand on that
right
refused
intoximeter
Duckworth
objection
Finally,
Toms
excep-
over the
refusal.
test.
defendant,-Officer Massey
tion
H05 State, Okl.Cr., involved, incrimination is herein. The See also refusal 572. intoximeter test con P.2d stitutes what negative be termed a Barnhart on the The state relies *3 predicate productive which nothing was of support But, not supra. case does n herein, surmise, than speculation, sheer more contention, for therein state’s the Hence, only questions innuendo. two are in his own took the stand the defendant First, involved in the at bar. case was it opened in chief behalf and in his evidence within right the defendant’s to refuse to he question of tests up the of kinds the test? The answer be in must thereby may subjected He have been to. State, affirmative. supra; Toms v. Alex cross right to remain silent on waived the State, ander supra. Second, v. the defend pertinent or relevant examination to all as having refused, ant was evidence of the re herein; the de- facts as to the tests. While fusal admissible in evidence and it the used test was fendant’s refusal take the subject of by comment the state? We are purely by its the state in in chief the answer be in the must refus- prejudicial purposes. The accused’s negative, lest the defendant be the victim sub- inquiry should ended on the al have of prejudice by pro created no real fact say you ject. ill It behooves the courts by test, by duced surmise, specula but something, do right have a to refuse to tion, and innuendo only upon based as may prove or detri- which either beneficial by sertion the defendant of his fundametal notwithstanding you, yet, mental to right to refuse the test. In way no other do, your permit your re- right we so to will right can the any to refuse have meaning the state to fusal to be shown enable more than a constitute mere shadow of indirectly destroy your right and achieve substance. repeatedly This court has held by by prevented law innuendo what it upon that no speculation, conviction based directly. accomplishing We can con- surmise, or innuendo will be sustained. inconsistency. greater ceive of no State, 330; Slaton v. 257 P.2d confusion, allay possible To we it deem Doty State, v. 88 Okl.Cr. P.2d point well to is a clear out that dis- there 444; Taylor Okl.Cr. case, supra, tinction in P. 158. Therein, the case at bar. the intoximeter Moreover, in this connection there is evi- producing test taken real evidence sustain dence to the defendant’s contention Hence, question probative value. driving not even he was at automobile imposed admissibility therein as to its or as jury might the time the collision. The obtained in violation of it was strong him believed had not the infer- . against self incrimination. rule by ence of intoxication been left admission therein, question, against was resolved of evidence his refusal to take the intoxi- ground that the could rule procedure pursued in méter test. The only be as invoked to oral given prejudicial bar highly case at jury, except before the that such evidence rights the defendant. jury’s presence obtained out of been unable to any We have find threats or forcible extractions in such a cases di- point rectly as we indicated we could manner as to shock the find conscience of the Barnhart By none case. analogy, court or offend sensibilities was held however, compelled we feel inadmissible. follow the 7Q1,- provisions of perti- O.S.1951 Herein, Only nothing was done. refus- follows; part which reads as nent test, al was made to the which n * * «* productive person charged pro- of real been evidence of shall , request, otherwise, own but not But since bative value. was not at witness, taken, competent probative nothing of -be a failure value was de- ¿(cid:127).to Therefore, request veloped. shall rule make the' sélf create . forms of before against Rim nor be fair trial under'the law presumption any commented, trial; may if he be convicted.’ mentioned on ground it counsel “In Nowlin a new trial.” 121 P. is may ;what ‘It think of matters not we pro bar, end effect of case at policy It manda of this statute. defendant’s pursued make cedure is to tory, and have no discre therefore we test evidence refusal to take the intoximeter plain matter, tion in it is our test be refused the that he innuendo duty vio It must not enforce it. In ef results thereof. cause feared *4 lated, in directly indirectly, either or presumption a fect, creates procedure ” spirit.’ its letter or failure to of his against him because (cid:127) foregoing adopted opinion We are of the that the procedure believe the the test. We " clearly applicable to provi statute -and cases are of the in violation in case at bar is n judgment and effect the case at bar. The sen- The foregoing statute.' of the sions n herein, accordingly re- imposed, .tence is procedure been condemned has of such in times, analogous versed and remanded a new trial con- in court numerous this formity principles an- with the herein foregoing statute. construing the cases 381, 28, State, 156 nounced. P.2d Bock v. 382, was it said: J., JONES, P. concurs. by the violated this statute is “Where
n
commenting
the failure
prosecutor
POWELL, J.,
in
concurs
conclusion
testify,
it is held
defendant
to
duty
mandatory
it is the
that
POWELL,
(specially concurring
Judge
Dor
trial.
a
to order
new
(cid:127)trial court
conclusion).
State,
65,
557;
16
v.
180 P.
sett
Okl.Cr.
defendant
should be
agree
I
that
State,
40
v.
Okl.Cr.
Schrader
agree
I do not
that
granted
new trial.
a
325; Cokely
State, 28
v.
P.
Okl.Cr.
could not
making
out its case
State
330;
State,
431, 231
Rice
P.
v.
Okl.
or not an
to
officer offered
show whether
857; Shepherd
P.2d
Cr.
test, and
give
an intoximeter
the accused
131],
HQ7
case,
II,
Constitution,
immediately apparent,
to the effect
as is
our
Art.
is the
compelled
give
principle
majority
shall he
now
“no
to incriminate
rejected
which will
tend
enunciates.
But
provisions,
perti-
him”,
Doyle
with added
Ricketts
Judge
for the
“
*
* *
per-
there
portion reading:
saying
nent
Okl.Cr.
215 P.
[23
213]:
request, but
charged
son
shall at his own
“The
provision
constitutional
guar-
witness,
otherwise,
competent
not
greater
antees
privilege
no
than that
request
to make such
failure
persons,
parties
all
or extra-
nor
presumption against him
any
create
witnesses,
neous
free from
shall be
trial;
mentioned in
if commented
compulsion by legal process,
ground for upon by
shall be
counsel it
n
testimony.
self-incriminating
new trial.”
principal purpose
provision
ago in Ricketts v.
Long
prohibit compulsory
examination of
pointed
267, 215 P.
this court
prisoners
trial,
trial
before
ut-
testimonial
between
out the distinction
purpose
unwilling
extorting
body
of an accused’s
and the use
terances
implicating
confessions or declarations
*5
as evidence.
them in
It could
further
crime.
reach
only
exceptional
peculiar
were
in
cases
others
and two
defendant
There
purpose
spirit
auto-
within the
coming
of seven
jointly charged with
theft
found
of
inhibition.”
were
casings. Foot
tracks
mobile
place
commit-
where the theft was
near the
authorities,
Cited,
Wig-
among
other
Defendant,
then under arrest
ted.
Evidence,
on
more’s work
State
sheriff,
compelled to
custody
of the
646, Am.Rep.
Graham,
493.
74 N.C.
him,
by
worn
shoes
the shoes
take off
the accused
the Graham
where
theft
place where
to the
were taken
put
objection
his
his feet
forced over
committed,
into
tracks
and fitted
court
footprints
comparison, the
certain
there found.
though
act
the officer
held
of
objected
evi-
to all the
did
right, yet it
of
The
an invasion
defendant’s
dence,
footprints,
that defendant
“because it shows
of
not affect the resemblance
arrest,
forced,
furnish
weight
while under
as evidence.
only
fact which
of
clearly
in violation
out
against himself
set
proceeded to
The court then
evidence
Consti-
State
of
Federal and
word
rights under the
between
the distinction
tutions,
provide
mouth,
that no
physical
which
All
or real evidence.
compelled
attempted
furnish
be
in some detail
out
this we
to set
Ricketts,
State,
himself.” There
to sustain his
of
in the recent case
Alexander v.
cases,
position,
being
cited two
one
Davis
enu
Okl.Cr.,
572. We there
305 P.2d
10,
many things
Ala.
So.
which held
an accused could
merated
required
objection, such
that:
do over
be
fingerprints, displaying
forcibly taking
as
Evidence that defendant declined to
bodily
forcibly
identification,
scars
taking away of the shoes
consent
trying
presence
on a coat out of the
of
wearing,
purpose
for the
he was
which
States,
jury.1
Holt
See
v. United
sup-
comparing them with tracks
of
245, 252, 253,
2, 6,
218 U.S.
S.Ct.
posed to have been made
him is in-
Ann.Cas.
L.Ed.
and where
under
constitutional
admissible
Holmes said:
immunity
being
of
com-
guaranty
Justice
pelled to incriminate himself.
prohibition
compelling
a
“But
criminal
to be witness
in a
approved
man
principle
in the Alabama
The
demonstrations before a
make
to
and the
ease of Ward v.
1. The Oklahoma
requirements out
same
makes a
H09 drunken driving any does more not have research of spent weeks right question give sample refuse to of his case, distinction where the breath (that sound- would involved, of be the means of deter- convinced being mining compelled to distinction, charged or not he be I feel would ness of the with arrested, the offense for which or not above observations. add the charged because the in- test would show Rehearing On Petition sufficient support alcohol in his blood to charge, blood, or no alcohol in his Judge. BRETT, Presiding which disability would some other indicate denied, rehearing Petition might require attention) medical than forth- mandate issue the Clerk is ordered to an person arrested right would re- with. fuse to be ground searched on what might might be found be in evidence offered NIX, J., concurs. against him, give up as refusal stol- en articles person, found on the or to POWELL, J., dissents. up weapons might be on birth-marks, disclose other tattoos or POWELL, Judge (dissenting). marks useful Varying in identification. por- rehearing of that The State seeks a amounts of force can be used officers January majority of tion of the mentioned, obtaining the kinds “in a criminal wherein held that it was upon the amount depending the nature with be- charged accused is where the Many evidence. illustrations the State is asked ing intoxicated and given per- where conduct an arrested test to determine submit to an intoximeter son might question bear guilt alcohol, ac- it is amount blood and properly brought the attention of statutory right, O.S.1951 cused’s jury. I find no reason valid for an ex- to refuse to submit thereto”. ception here. stat- rehearing, I as the grant would weapons, search for if an accused ap- only question by own terms ute in its *7 attempt would weapon, to use a the officers required give plies being an accused protect in effort to their might lives use all himself. against testimonial necessary for protection. their Spe- force give fails testimonial the accused Where cifically, where person the arrested accused may not be commented such fact driving of drunken a would refuse to jury. But for the statute there sample resisted, breath actively and the of- inhibition. Most of the states would be no violence, ficers could not resort I would not ex- provision. have no such reason of inapplicability self-in- tend the statute to cover a situation not provision criminatory of the Constitution specifically stated. Such would amount to circumstance, statute such a could legislating properly function ours. not, principle developed under the in —a individual, as well as the cited, authorities constitute error for the rights protected. that should In our en- present, arresting officer or others to state is, often, tendency thusiasm there too to why they were unable to an intoxi- make overlook this basic fact. hold meter To otherwise test. would be to repudiate principle by Wig- enunciated Ricketts, 267, 23 view in many more followed cases listed Ward, 362, 215 P. in our case. 498, 499, Alexander, Okl.Cr., 305 P.2d position court, supported our believe 572 cases from and Holt v. We this Unit- States, Supreme principle a late case ed S.Ct. U.S. (February, 1957, authorities, States United L.Ed. as well as other all Court pendency petition during the published ap- discussed in our Alexander it is case), within rehearing in the Breit- parent that a motorist arrested the act of S.Ct. haupt Abram, 352 U.S. sample to blood There a L.Ed.2d 448. who, prior
test an unconscious motor unconscious, driving
becoming' accident, was a fatal
vehicle at the time of consent
extracted, obviously without This presumably his will. majority six-justice
held in a dissenting)
(Warren, Douglass Black and rights constitutional
as not violative of the the law being the motorist. Such motorist, why in an
case of unconscious un- it be would motorist a conscious refused motorist
lawful to show that the sample
permit when a breath sample taken
been in effect coerced this I think his consent?
without long observing should be most careful recognized long principles,
adhered to should, particularly land,
the law of involved, questions are where constitutional cases adjudicated to abide
endeavor United Supreme
from the
States. Error, Jr., TWOGUNS, Plaintiff
Lorenzo Oklahoma, Defendant
The STATE of Error.
No. A-12426. Appeals of Oklahoma.
Criminal
April 10, 1957.