Alexander v. State

Citation305 P.2d 572
Decision Date12 December 1956
Docket NumberNo. A-12355,A-12355
PartiesSarah E. ALEXANDER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 572

305 P.2d 572
Sarah E. ALEXANDER, Plaintiff in Error,
The STATE of Oklahoma, Defendant in Error.
No. A-12355.
Criminal Court of Appeals of Oklahoma.
Dec. 12, 1956.

Page 574

Syllabus by the Court

1. Giving the evidence of the defendant full credence by reason of the fact that on motion to suppress the evidence no refutation was attempted, we must hold, contrary to the trial court's finding, that defendant's manual demonstrations, including the breath test for alcohol, were not freely entered into, but were performed by reason of fear engendered by the rigid and compelling demands and requirements of the police, supported by apparent finality of authority and power.

2. The constitutional guaranty against compulsory self-incrimination exempts no one from the consequences of his crime, but it protects him from the necessity of himself producing the evidence. Okl. Const. Art. II, § 21.

3. Constitutional provision against self-incrimination, Art. II, § 21, Okl.Const., prohibits involuntary testimonial utterances, or unreasonable involuntary demonstrations before the jury; evidence obtained by threats or forcible extractions from the defendant out of the presence of the jury in such a manner as to shock the conscience of the court or offend public sensibilities is violative of the due process clause of the Oklahoma Constitution, and inadmissible. Art. II, § 7.

4. The privilege against self-incrimination was not violated by testimony of officer as to certain manual tests for intoxication given defendant following her arrest for driving a motor vehicle while under the influence of intoxicating liquor.

5. The privilege against self-incrimination is not violated by testimony of officer as to the result of a Harger breath test or drunkometer test for alcoholic content of blood, resulting from an examination of accused by officer without her permission following arrest on a charge of driving a motor vehicle while under the influence of intoxicating liquor, provided such witness qualifies as one competent to make the test.

6. No evidence is by law made conclusive and unanswerable, unless so declared by the code. The law makes no distinction between expert testimony and evidence of other character. When there is conflict between scientific testimony and testimony as to facts, the jury or trial court must determine the relative weight of the evidence.

7. In the within case it is found from the record that the police officer making the Harger color-change breath test for alcohol, qualified as competent to make the same, and competent to read the results as disclosed on parallel scales on the gasometer cylinder of the drunkometer machine, meaning the amount of water displaced by the breath at the moment of the color change of the chemicals through which the breath was passing, and the parallel reading, or reading from a chart, showing the corresponding reading for percentage blood alcohol, but did not qualify to testify as to the meaning of such readings.

8. To be permitted to testify to the effect of the amount of alcohol found in the blood of an accused as to intoxication, a witness must qualify not only to a knowledge of the operation of the instrument used in ascertaining the amount of blood alcohol found and as to whether the test used is generally accepted by the medical profession, but must qualify as an expert witness concerning the effect of alcohol on the human system.

9. It is found herein that the testimony of physician testifying as to the meaning of the readings on the gasometer cylinder of the Harger drunkometer as found by police officer operating the machine was competent, the said witness having demonstrated a knowledge of the method used, and qualified as an expert witness as to the effect of varying amounts of alcohol on the human system.

Page 575

Appeal from the Municipal Criminal Court of City of Tulsa, Tulsa County; Harry Seaton, Judge.

Sarah E. Alexander was convicted of the offense of driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, and appeals. Affirmed.

A. A. Berringer, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst Atty. Gen., for defendant in error.

POWELL, Judge.

Plaintiff in error, Sarah E. Alexander, hereinafter referred to as defendant, was tried before a jury in the municipal criminal court of Tulsa of the crime of driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, was found guilty, but the jury being unable to agree upon the penalty left that to the court, who fixed punishment at imprisonment in the Tulsa County jail for ten days, and a fine of $100. Appeal has been duly perfected to this court.

For reversal it is urged, among other things, that 'The court erred in admitting in evidence testimony of officers about statements or admissions and tests of defendant which were not given or submitted to voluntarily.'

This proposition is a very important issue in the within appeal, because as we view the record, if the evidence with reference to certain physical tests, statements defendant made and that were taken down by an officer, and a breath test for alcohol were involuntary and if therefore inadmissible in evidence, then it is very doubtful that there was sufficient evidence to have caused conviction, and defendant would be entitled to a new trial.

The problem then is to first determine if the tests and statements in question were voluntarily or involuntarily entered into. And as a guide in making this determination the rules set out in Lyons v. State, 77 Okl.Cr. 197, 138 P.2d 142, 144, 140 P.2d 248; Id., 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, should be kept in mind. There we said:

'A voluntary confession is one made by an accused freely and voluntarily, without duress, fear or compulsion in its inducement, and with full knowledge of the nature and consequences of the confession.

'A confession of the accused shown not to have been freely and voluntarily made, but induced by hope or promise of benefit, or through fear, or by personal violence and torture, or threats thereof, except to the extent that it may in some instances be used to impeach the testimony of the accused, is involuntary and inadmissible.' (Emphasis now supplied.)

We note that after the jury had been selected, but prior to the commencement of the trial, counsel for defendant contended that certain evidence relied upon by the state was inadmissible, and the jury was excused so that the court might hear and pass on the admissibility or inadmissibility of the evidence complained of. See Lyons v. State, supra. Such is also the procedure where evidence is claimed to have been obtained by unlawful search and seizure. Watson v. State, 73 Okl.Cr. 58, 117 P.2d 808.

The hearing was in the nature of a hearing on a motion to suppress, though the reporter in brackets designated the same, 'Hearing on the admissibility of certain extra-judicial confession.' In this hearing there was no evidence of admissions of statements made by the accused. The evidence covered 'real' rather than written or testimonial.

In Bowden v. State, 1952, 95 Okl.Cr. 382, 246 P.2d 427, 428, this court held:

'Whether accused voluntarily furnished samples of blood and urine for analysis is a preliminary question for trial court.'

Not only was a rule of procedure indicated, but the inference from the above quotation is this if the proof would show

Page 576

the blood or urine specimen was involuntarily given, then it would be inadmissible in evidence. But the court in the Bowden case found that the specimens were voluntarily given, so that any inference as to a ruling in case of speciments not voluntarily given would constitute dicta.

The defense used but one witness, the defendant, and the State failed to introduce any evidence to rebut that of the defendant.

If the State had introduced rebuttal evidence the problem would be simply to discover if there was competent evidence to support the finding of the court. We would not seek to determine the weight of the evidence. Griffin v. State, 90 Okl.Cr. 90, 210 P.2d 671.

Our first task, then, is simply to determine from the evidence whether the defendant was caused to involuntarily give evidence against herself to the police and officials who took her into custody.

Defendant testified that on October 5, 1955, at approximately 7:50 P.M. she was arrested at Fourth and Main Streets, in the City of Tulsa. (She had made an unauthorized left-hand turn.) She was taken to the police station and into a room where she was told to walk a line, to pick up some coins, and caused to perform other manual tests. Witness said that she was under arrest and that she thought she had to do everything the officers told her to do. That they refused to permit her to make a 'phone call for advice; that she was not advised as to her constitutional right to counsel and to refuse to do the things demanded, and did not know and was not advised that this evidence could be used against her.

Defendant denied on cross-examination that she performed the manual tests and blew her breath into a balloon voluntarily. She said that Officer Haddock told her to sit down in a chair, handed her a balloon and told her to blow it up. She said that she thought she needed counsel if she was under arrest. She reiterated that she was never advised that she had a right, if she did, to refuse to do the things demanded.

From the facts stated, standing alone, can it be said that this woman, presumably inexperienced in legal procedure and the duties and authority of police officers, performed the manual tests and gave her breath for an alcohol test, willingly? She says not. If the State was prepared to take issue with the contentions of the accused it would have been a simple matter, and it was the duty of the prosecution, 60 have introduced evidence to the contrary. The accused's evidence,...

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    ...fingerprints or personal property, the possession of which is a pertinent issue in the charge against him (cf. Alexander v. State, supra, Okl. Cr.1956, 305 P.2d 572, 584), or requiring handwriting exemplars to be given, where the requirement for writing approaches even more closely the char......
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