Nix v. City of Andalusia, 4 Div. 215

CourtAlabama Court of Appeals
Writing for the CourtSAMFORD, J.
Citation109 So. 182,21 Ala.App. 439
PartiesNIX v. CITY OF ANDALUSIA.
Decision Date15 June 1926
Docket Number4 Div. 215

109 So. 182

21 Ala.App. 439

NIX
v.
CITY OF ANDALUSIA.

4 Div. 215

Court of Appeals of Alabama

June 15, 1926


Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Prosecution by the City of Andalusia against Vester Nix. From a judgment of conviction, defendant appeals. Reversed and remanded.

Rice, J., dissenting.

A. Whaley, of Andalusia, for appellant.

Baldwin & Murphy, of Andalusia, for appellee.

SAMFORD, J.

There was at one time some uncertainty as to whether additional punishment, in cases such as here considered, should be fixed by the judge or jury trying the case on appeal to the circuit court, but those questions are now settled. Guin v. City of Tuscaloosa (Ala.App.) 106 So. 64.

[21 Ala.App. 440] Under the law as it now stands the power is with the trial judge to fix the punishment, and, if the verdict of the jury, finding the defendant guilty and fixing a fine, goes further, and fixes a hard labor punishment, the judge trying the case may treat that part of the verdict fixing hard labor as surplusage, and proceed to fix the punishment as the law requires. Ex parte Robinson, 183 Ala. 30, 63 So. 177.

The bottles containing the whisky, charged as being possessed by defendant, were introduced in evidence, and were sitting on a table in the presence of the jury preparatory to being taken into the jury room as evidence. The court directed the attention of the jury to this evidence, and said: "You have the evidence there before you; you can see whether or not it is intoxicating liquor," whereupon one of the jurors took up one of the bottles and tasted the contents. The defendant excepted to the ruling of the court. Thereupon the court stated: "I did not permit it--he did it without the court's permission." Defendant then made his motion to withdraw the case from the jury. This motion was overruled and the defendant excepted.

The decisions of courts of other jurisdictions are in hopeless conflict on the foregoing question. In Schulenberg v. State, 79 Neb. 65, 112 N.W. 304, 16 Ann.Cas. 217; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Weinant v. State, 80 Neb. 161, 113 N.W. 1040; Reed v. Ter., 1 Okl.Cr. 481, 98 P. 583, 129 Am.St.Rep. 861; State v. McCafferty, 63 Me. 223, it is held not to be error for the court to permit the jury to take to their room a bottle of liquor introduced in evidence and to test the same by sight, taste, or smell. And the court in the Reed Case, supra, is persuasive in its arguments to sustain its position. On the other hand, the courts in Kansas, Texas, and Minnesota are in accord with our own Supreme Court in holding that the action of the court in permitting the jury to smell, drink, or taste liquor introduced in...

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14 practice notes
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • 26 Mayo 1927
    ...dire as to their qualifications or grounds of challenge (section 8662, Code) is secured in civil and criminal cases in Nix v. Andalusia, 21 Ala.App. 439, 109 So. 182. The general rule is that in failing in a reasonable diligence in this behalf there is waiver of ground of challenge. 20 R.C.......
  • Tidmore v. Mills, 2 Div. 756.
    • United States
    • Alabama Court of Appeals
    • 15 Agosto 1947
    ...the jurors for cause. Title 30, Sec. 55, Code 1940; Rakestraw v. State, 22 Ala.App. 487, 116 So. 414; Nix v. City of Andalusia, 21 Ala.App. 439, 109 So. 182. The court sustained objections of appellant's counsel when effort was made to have Mr. Henry Tidmore, brother of the defendant below,......
  • Nodd v. State, 1 Div. 788
    • United States
    • Alabama Court of Criminal Appeals
    • 16 Junio 1989
    ...to further safeguard the rights of parties in obtaining a fair and unbiased consideration of the issues." Nix v. City of Andalusia, 21 Ala.App. 439, 440, 109 So. 182 (1926). It " 'Examination of Jurors. In civil and criminal cases, either party shall have the right to examine juro......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • 24 Octubre 1929
    ...dire as to their qualifications or grounds of challenge (Section 8662, Code) is secured in civil and criminal cases in Nix v. Andalusia, 21 Ala. App. 439, 109 So. 182. The rule is that in failing in a reasonable diligence in this behalf there is waiver of ground of challenge. 20 R. C. L. 24......
  • Request a trial to view additional results
14 cases
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • 26 Mayo 1927
    ...dire as to their qualifications or grounds of challenge (section 8662, Code) is secured in civil and criminal cases in Nix v. Andalusia, 21 Ala.App. 439, 109 So. 182. The general rule is that in failing in a reasonable diligence in this behalf there is waiver of ground of challenge. 20 R.C.......
  • Tidmore v. Mills, 2 Div. 756.
    • United States
    • Alabama Court of Appeals
    • 15 Agosto 1947
    ...the jurors for cause. Title 30, Sec. 55, Code 1940; Rakestraw v. State, 22 Ala.App. 487, 116 So. 414; Nix v. City of Andalusia, 21 Ala.App. 439, 109 So. 182. The court sustained objections of appellant's counsel when effort was made to have Mr. Henry Tidmore, brother of the defendant below,......
  • Nodd v. State, 1 Div. 788
    • United States
    • Alabama Court of Criminal Appeals
    • 16 Junio 1989
    ...to further safeguard the rights of parties in obtaining a fair and unbiased consideration of the issues." Nix v. City of Andalusia, 21 Ala.App. 439, 440, 109 So. 182 (1926). It " 'Examination of Jurors. In civil and criminal cases, either party shall have the right to examine jurors as to t......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • 24 Octubre 1929
    ...dire as to their qualifications or grounds of challenge (Section 8662, Code) is secured in civil and criminal cases in Nix v. Andalusia, 21 Ala. App. 439, 109 So. 182. The rule is that in failing in a reasonable diligence in this behalf there is waiver of ground of challenge. 20 R. C. L. 24......
  • Request a trial to view additional results

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