Schulenberg v. State

• Decision Date: 10 May 1907
• Docket Number: 14,720
• Citation: 112 N.W. 304,79 Neb. 65
• Parties: MATT SCHULENBERG v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

112 N.W. 304

79 Neb. 65

MATT SCHULENBERG v. STATE OF NEBRASKA

No. 14,720

Supreme Court of Nebraska

May 10, 1907

ERROR to the district court for Richardson county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

Reavis & Reavis, for plaintiff in error.

W. T Thompson, Attorney General, and Grant G., Martin, contra.

OPINION

JACKSON, C.

The defendant was found guilty of unlawfully keeping intoxicating liquors for the purpose of sale without license. He presents the case in this court for review by petition in error.

The principal and important question arises out of the assumption of counsel on either side that the jury were required to taste of certain liquors produced in evidence on behalf of the state. The record in that respect presents this condition: A state's witness was being examined by the prosecution. A portion of the contents of a bottle in evidence was poured into a glass, and the witness was required to taste it, and this question was asked: "Q. Is that beer? A. I couldn't say whether that is beer or not. By counsel for the prosecution: Let the jury sample it. (The bottle and contents and glass and contents are handed to the jury.) Objected to as irrelevant, incompetent, and immaterial, and not a proper way to prove intoxicating liquors. Overruled. Exception." It will thus be seen that it does not affirmatively appear that any of the jurors tasted of the liquor. If it is a reasonable inference from the record that they did so, we are of the opinion that it was not error.

The authorities are somewhat in conflict as to the propriety of permitting jurors to taste of liquor in prosecutions of this character, and the question has never before been in this court for determination. The appellate court of Kansas, in State v. Lindgrove, 1 Kan.App. 51, 41 P. 688, held that it was error to permit jurors to taste of liquor produced in evidence. The reasoning seems to be that the jurors thus obtained private grounds of belief, and that after tasting of the liquor they were properly witnesses in the case and disqualified as jurors. We are unable to concur in that reasoning. If a belief founded on the evidence during the progress of a trial can be held to be a private ground of information, then it may be so held because of a belief founded on any class of evidence. In Commonwealth v Brelsford, 161 Mass. 61, 36 N.E. 677, it is said: "There are grave reasons against giving to a jury liquor to drink for the purpose of determining whether it is or is not intoxicating." We entirely agree with the sentiment there expressed where such course is taken by direction of the court, express or implied. The tasting should not be compulsory. A case in point is that of People v. Kinney, 124 Mich. 486, 83 N.W. 147, where it was held not to be error to permit the jury to taste of liquor where the question was whether it was...