(specially concurring in conclusion).
I agree that the defendant should be granted a new trial. I do not agree that the State in making out its case could not show whether or not an officer offered to give the accused an intoximeter test, and whether the test was given, and if not, why not.
In the within case the accused, according to officer Wilson, refused to submit to a test ' for intoxication. The error would seem to be that court permitted repeated asking of the question, after it had once been answered, and the repetitions were so formed as to leave the impression that if the test had been given it would have corroborated 'the conclusion of the officer that defendant was intoxicated. This, although the defendant was not arrested at the 'scene of the collision but was permitted to go his way and report later to the police station. • Of course the test might have shown that ..the accused was not intoxicated.
I think the provisions of 22 O.S.1951 § • 701 inapplicable. That statute merely reiterates the self-incriminátory provision of *1107our Constitution, Art. II, § 21, to the effect that “no person shall he compelled to give evidence which will tend to incriminate him”, but with added provisions, the pertinent portion reading: “ * * * the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned in the trial; if commented upon by counsel it shall be ground for a new trial.”
Long ago in Ricketts v. State, 1923, 23 Okl.Cr. 267, 215 P. 212, this court pointed out the distinction between testimonial utterances and the use of an accused’s body as evidence.
There defendant and two others were jointly charged with the theft of seven automobile casings. Foot tracks were found near the place where the theft was committed. Defendant, then under arrest and in the custody of the sheriff, was compelled to take off the shoes worn by him, the shoes were taken to the place where the theft was committed, and fitted into the tracks there found.
The defendant objected to all the evidence, “because it shows that defendant was forced, while under arrest, to furnish evidence against himself in violation of his rights under the Federal and State Constitutions, which provide that no person shall be compelled to furnish evidence against himself.” There Ricketts, to sustain his position, cited two cases, one being Davis v. State, 131 Ala. 10, 31 So. 569, which held that:
Evidence that defendant declined to consent to the taking away of the shoes which he was wearing, for the purpose of comparing them with tracks supposed to have been made by him is inadmissible under the constitutional guaranty of immunity from being compelled to incriminate himself.
The principle approved in the Alabama case, as is immediately apparent, is the principle that the majority opinion now enunciates. But it was rejected in the Ricketts case, Judge Doyle for the court there saying [23 Okl.Cr. 267, 215 P. 213]:
“The constitutional provision guarantees no greater privilege than that all persons, whether parties or extraneous witnesses, shall be free from compulsion by legal process, to give ■ self-incriminating testimony. The principal purpose of the provision was to prohibit compulsory examination of prisoners before trial or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in crime. It could reach further only in exceptional and peculiar cases coming within the purpose and spirit of the inhibition.”
Cited, among other authorities, was Wig-more’s work on Evidence, and State v. Graham, 74 N.C. 646, 21 Am.Rep. 493. In the Graham case, where the accused was forced over his objection to put his feet in certain footprints for comparison, the court held that though the act of the officer was an invasion of defendant’s right, yet it did not affect the resemblance of the footprints, the only fact which had weight as evidence. The court then proceeded to clearly set out the distinction between evidence by word of mouth, and physical or real evidence. All this we attempted in some detail to set out in the recent case of Alexander v. State, Okl.Cr., 305 P.2d 572. We there enumerated many things that an accused could be required to do over his objection, such as forcibly taking fingerprints, displaying bodily scars for identification, forcibly trying on a coat out of the presence of the jury.1 See Holt v. United States, 1910, 218 U.S. 245, 252, 253, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 20 Ann.Cas. 1138, and where Justice Holmes said:
“But the prohibition of compelling a man in a criminal court to be a witness *1108against himself is a prohibition of the use of physical or moral compulsion to extract communications from him, not an exclusion of his body as evidence when it may be material.”
A long list of cases where the above principle has been applied was set out in the Alexander case, supra. It is earnestly recommended that for a clear understanding of the application of the principle that the cited cases, including those listed in the footnotes, be studied. Nearly all the appellate courts in the United States and most of the text book writers approve the distinction we are discussing.
But we have cautioned that there must be a limitation on the force used in obtaining evidence, or officers may be faced with the due process clause of our Federal Constitution set out in the Fourteenth Amendment, Art. II, § 7, of Okl.Const., all as illustrated in the fairly late case from the Supreme Court of the United States: Rochin v. People of California, 1952, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396, where the methods used for exacting evidence from an accused were shocking to the judicial conscience and held violative of the due process clause of the Federal Constitution.
Assuming a familiarity with Alexander v. State, supra, it will be remembered that we there held that the accused was given certain manual tests and the breath test for alcohol against her will (though no violence or threats were involved), yet in making out its case the State was permitted by witnesses to show that the accused did take the manual tests and failed, and did take the drunkometer test. An expert witness testified as to the results of the test, and the meaning. The coercion used in obtaining this evidence was not sufficient to make it inadmissible. We said:
“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.
“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.”
The pertinent portion of 22 O.S.1951 § 701, that we have hereinbefore quoted (and relied on in the majority opinion as a basis for their ruling) only forbids an accused being required to come to the witness stand and testify — to give oral testimony— and his failure to testify in his own behalf creates no presumption against him so far as the law in this jurisdiction is concerned, and it constitutes reversible error for the prosecution to comment to the jury on the fact that an accused failed to testify.
Having in the Ricketts case, in Ward v. State, 27 Okl.Cr. 362, 228 P. 498, and in the Alexander case delineated a distinction between testimonial evidence and real evidence, and having held that forcibly obtaining real evidence, with a certain limitation, from an accused out of the presence of the jury did not violate the self-incriminatory provision of our Constitution, Art. II, § 21, Okl.Const., it follows that the statutory provision in question, 22 O.S.1951 § 701, being but a reiteration of the constitutional provision, could not be considered to have any greater force or power than the constitutional provision.
I think the distinction mentioned vital to law enforcement, particularly in connection with the application by the law enforcement agencies of modern methods for proof of intoxication or non-intoxication of motorists, in effort to lower the appalling and ever-increasing death rate of citizens using the public highways. And having *1109spent weeks of research in the Alexander case, where the distinction in question was involved, and being convinced of the soundness of the distinction, I feel compelled to add the above observations.
. The Oklahoma ease of Ward v. State, 27 Okl.Cr. 362, 228 P. 498 makes a distinction between requiring an accused to make demonstrations before a jury and the same requirements out of the presence of the jury.