Nix v. City of Andalusia

• Decision Date: 15 June 1926
• Docket Number: 4 Div. 215
• Parties: NIX v. CITY OF ANDALUSIA.
• Court: Alabama Court of Appeals

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.

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 evidence is error to a reversal. On this subject Brickell, C.J., said:

"And if it [the liquor] had been introduced, and by its use the jurors had acquired knowledge, or formed any opinion as to its properties or qualities, the one juror could not have communicated his knowledge or opinion to another. 'A juror on trial who has knowledge of any material facts, must give notice, so that he can be sworn, examined and cross-examined. ' " Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699.

In a later case (Phillips v. State, 156 Ala. 140, 47 So. 245) the Supreme Court approved the rule laid down by Brickell, C.J., but held that the bottle might be introduced in evidence. After a consideration of the authorities, we are bound to hold that the court in this case erred to a reversal. 1 Wharton, Ev.par. 602; Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699; 16 Ann.Cas. 218.

Attention is specifically directed to the case of Phillips v. State, 156 Ala. 140, 47 So. 245, and Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699. In the Phillips Case, the bottle and contents are admissible in evidence. In the Wadsworth Case, the jury may not test the liquor. It seems to the writer that the rule is reduced to absurdity, but this court is bound by the rule as it is declared.

The bill of exceptions recites:

"Counsel for defendant then moved the court for permission for the defendant, through his counsel in this case, to ascertain from the jurors on the list furnished the defense, from

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