Cupp v. State

• Decision Date: 18 July 1962
• Docket Number: No. A-13172,A-13172
• Citation: 373 P.2d 260
• Parties: David C. CUPP, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 260

373 P.2d 260

David C. CUPP, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13172.

Court of Criminal Appeals of Oklahoma.

July 18, 1962.

Syllabus by the Court

Permitting evidence in chief, over objection of the defendant, of his refusal to take 'Sobriety Test' is prejudicial error and is reversible upon review.

Appeal by plaintiff in error from judgment and sentence rendered by the county court of Pittsburg County, Oklahoma, of six months imprisonment in the county jail and a fine of $500 upon conviction of driving while intoxicated. Judge O. H. Whitt, presiding. Reversed and remanded for new trial consistent with opinion.

Gene Stipe, Richard L. Gossett, Frank D. McSherry, McAlester, for plaintiff in error.

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

BUSSEY, Judge.

This is an appeal from the County Court of Pittsburg County wherein plaintiff in error, David C. Cupp, defendant below, was convicted of the offense of driving while under the influence of intoxicants. From the judgment and sentence fixing his punishment at imprisonment in the county jail for a term of six months and assessing a fine of $500, the defendant has perfected a timely appeal to this Court.

Under the authority of Duckworth v. State, Okl.Cr., 309 P.2d 1103, and Engler v. State, Okl.Cr., 316 P.2d 625, we are of the opinion that this case must be reversed and remanded for a new trial. In the cases above cited, this court stated:

'Permitting evidence in chief, over objection of the defendant, of his refusal to take 'Sobriety Test' is prejudicial error and is reversible upon review.'

In the case at bar it appears that the county attorney in his opening statement to the jury referred to the request of the defendant to take the sobriety test and his subsequent refusal to submit to the same when it was offered over the objection of the defendant's counsel. The state further compounded the error by introducing into evidence the testimony of Officers Pete Foneris and Leo Sharp. This testimony was objected to by defendant and exceptions properly taken to its admission.

Defendant in his direct testimony did not refer to a request for or refusal to take an intoximeter test.

Herein lies the distinction between the case at bar and Barnhart v. State, Okl.Cr., 302 P.2d 793, relied upon by the attorney general to sustain the conviction. In the Barnhart case, defendant testified on direct examination in response to a question propounded by his attorney about his refusal to submit to the...