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Stewart v. State12/13/1967
Rehearing Denied December 29, 1967.
DAN STEWART, PLAINTIFF IN ERROR,
v.
THE STATE OF OKLAHOMA, DEFENDANT IN ERROR.
An appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.
W. Carl Nixon, Oklahoma City, for plaintiff in error.
G.T. Blankenship, Atty. Gen., Jeff Hartman, Asst. Atty. Gen., for defendant in error.
The opinion of the court was delivered by: NIX, Presiding Judge.
Dan Stewart, hereinafter referred to as the defendant, was charged with the crime of Murder (Felony) in Cleveland County. He was tried before a jury, found guilty, and his punishment fixed at Life imprisonment in the penitentiary. Defendant perfected his appeal to this Court asserting numerous assignments of error upon which he relies for reversal.
This charge of murder arose out of the defendant running over a man working on the highway between Norman and Oklahoma City. The highway employee was killed as a result thereof. Defendant was allegedly intoxicated when he ran over the deceased, and having had previous convictions for drunk driving , he was charged under the Felony-Murder statute, pertaining to Drunk Driving and Homicide. To drive an auto while under the influence of alcohol after having been previously convicted for same, constitutes a felony. The statute further provides that causing the death of a human being while in the commission of a felony, constitutes murder. Thus the charge in the instant case.
This Court has thoroughly examined the briefs filed herein along with the casemade, and have come to the conclusion that it is only necessary to deal with the contention of error pertaining to the admissibility of evidence.
It is revealed by the casemade that defendant was taken in custody by the City Police of Moore and held until the Highway Patrol transported the defendant to the County Jail in Norman. There he was taken to a room equipped for taking moving pictures of the defendant while performing various tests under the direction of an officer. These tests consisted of such things as: walking a straight line, picking up coins from the floor, standing erect with head turned up as if looking at the ceiling with eyes closed, then touching nose with his finger. These tests are often referred to as "Sobriety Tests" or "Alcoholic Influence Tests". During the time the tests were being performed by defendant at the direction of an officer, a .16 mm. camera was taking pictures of defendant's actions, demeanor, and conversation. The beginning of the picture reveals that the officer directing defendant's actions told the defendant "* * * that it was his constitutional right to refuse". The film reveals that in response to this, defendant said nothing; and the moving picture camera kept on grinding away while defendant tried to comply with Officer Pryor's directions. According to the testimony of Officer Pryor, this was the only admonition given to the defendant.
This hardly complies with the rule adopted by this Court in Spencer v. State, Okl.Cr.App., 404 P.2d 46. In that case, the identical question was presented to the Court, and in adopting a rule as to the admissibility of films taken of defendant while performing "Alcoholic Influence Tests", the Court had this to say:
"Showing of films taken of defendant while performing tests under direction of the police without his knowledge or consent constitutes a violation of Article 2, Section 21, of the Bill of Rights, as compelling defendant to give evidence tending to incriminate himself."
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