Nelson v. State
| Decision Date | 07 April 1925 |
| Citation | 203 N.W. 343,186 Wis. 648 |
| Parties | NELSON v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.
Tony Nelson was convicted of possessing intoxicating liquor and destroying evidence, and he brings error. Affirmed.Reilly & O'Brien, of Fond du Lac, for plaintiff in error.
Herman L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and James Murray, Dist. Atty., of Fond du Lac, for the State.
The plaintiff in error, hereinafter called the defendant, was charged with the unlawful possession of intoxicating liquor and with the destruction of evidence during a raid on the premises by officers. He was found guilty of possessing intoxicating liquor and guilty of destroying evidence.
The defendant was the holder of a license from the city of Fond du Lac to sell nonintoxicating beverages in a building opposite the courthouse square. In the front of the building is a restaurant in the center of which is a soft drink stand. On the second floor there are sleeping rooms some of which were occupied by roomers and boarders. On May 8, 1924, several prohibition officers entered the building and in the restaurant met the defendant, asked him if he was the proprietor, to which he answered in the affirmative, and informed him that they were state officers and wanted to make an inspection. The officers testified that the defendant had in his hand a bottle of liquid and ran to the stairway; that he was caught by one of the officers, who tried to take the bottle from him; that the defendant spilled and poured some of the liquid upon the floor. The remaining content of the bottle was introduced in evidence and tested 44.75 per cent. alcohol. The defendant testified that this was liquor which had been prescribed by a physician.
Afterward the officers went up a stairway from the soft drink parlor to the rooms above. On the part of the defendant there was testimony that they found one room, which was locked, and broke open the door. According to the officers, the defendant was asked to unlock the door, which he did, and it is conceded that they found several gallons of faked and moonshine whisky, testing a little more than 47 per cent. alcohol. It was the testimony of the defendant and his wife that the room in which the liquor was found was in the exclusive possession and occupancy of the defendant's wife. She testified that she moved the liquor to that room from the room of transient guests and had not advised her husband of that fact. On the part of the state, there was testimony that the defendant stated that the bedroom was his.
During the course of the trial, counsel for the defendant requested that a view of the premises be taken. In compliance with the request, the court suspended the trial till afternoon in order that the view might be taken, instructed the jury before leaving not to talk about the case or permit anybody else to mention it; that the sheriff would take them to look at the place, would take them upstairs if they desired, and that that was all that would be necessary; that they could get the location of the room where it was claimed the liquor was found; that one of the prohibition officers might go with the sheriff, and that the defendant and his attorney might go; that there should be no mention of the case in the presence of the jury except to point out the door and the stairway. After the verdict a motion was made on an affidavit of an employee of the defendant to set aside the verdict on account of the misconduct of the jury. The material part of the affidavit is as follows:
“That there accompanied the jury to said premises a prohibition agent named, as the affiant is informed, Parkinson; that said agent, while the jury was on the second floor, entered rooms on the second floor other than the room of Mrs. Nelson, and searched the same, and that from a bathroom on said floor the said agent took a six-gallon jar containing alleged illicit liquid, commonly known as home brew; that he took the same from said room and to the room of Mrs. Nelson and, in a laughing, mocking, and sneering way, called the attention of the jury to the jar and its contents and, in the presence of the jury, stated that he was going to take the same from the premises and did, in the presence of the jury, carry said jar from said premises and across the courthouse yard in full view of certain members of the jury.”
On the hearing of the motion members of the jury were summoned to appear and testify as to the transaction. The prohibition officer testified that he accompanied the jury, went upstairs, and opened the doors; that as he entered the building there was a strong odor of stale beer; that as he left the building he took a jar containing a small amount of home brew beer in the making; that he was the last one out of the building; that although he took the jar from the premises it was not in the presence of the jury; that he did not know that there was any restriction as to viewing the premises. Eleven of the jurymen and jurywomen were examined; their attention was called to the contents of the affidavit, and each was asked to tell what he or she knew in reference to the conduct of the prohibition agent. Nine testified that they did not see the jar; several testified that they did not see him do anything; one that she did not see him at all; one testified that he did not see the jar until they came out of the building when the prohibition agent had it; several testified that there were several jurors in the bathroom. There was testimony that there was a strong odor and that something was said about pickles. One testified that the prohibition agent while talking to the sheriff was laughing, but he did not know what it was about. The counsel for the defendant did not participate in the view, but he saw the sheriff and the prohibition agent crossing the street with a jar, and that as he entered the building he saw three or four members of the jury walking out. In passing on the motion, the court said:
[1][2][3] The most lengthy and earnest argument contained in the brief for the defendant relates to the alleged misconduct of the jury. No objection can be made to the fact that a view was taken, since it was made at the request of the counsel for the defendant. Nor can any objection now properly be made to the fact that the sheriff and the prohibition officer accompanied the jury, since this direction was given in the presence of counsel for the defendant and no objection was made. It was probably expected that the defendant's counsel would be present when the view was taken. Probably if he had been present the irregularities now complained of would not have occurred. It does not appear that there was any mention of the case by the sheriff or the prohibition officer in the presence of the jury. Two of the irregularities complained of consist in opening the door to the bathroom and in taking the jar away from the premises. It is true that the opening of the door was not in strict compliance with the directions given by the court, and yet it does not appear that there was any willful or intentional disobedience, and we agree with the trial judge that the occurrence did not affect the verdict to the defendant's prejudice.
[4] The preponderance of the testimony seems to be that the jar was carried away by the prohibition officer after the jury had left. There is no evidence that any of the jury knew its contents, and only one or two saw it at all. It appears from the testimony of the counsel for the defendant that he saw the prohibition officer and sheriff when they were crossing the street with the jar and made some comment on the subject. He thus had some notice that in connection with the view something had occurred outside the direction of the court. No objection was made respecting the view until after the verdict had been rendered. While this fact did not give...
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