Schulenberg v. State, No. 14,720.

CourtSupreme Court of Nebraska
Writing for the CourtPER CURIAM.
Citation112 N.W. 304,79 Neb. 65
Docket NumberNo. 14,720.
Decision Date10 May 1907
PartiesSCHULENBERG v. STATE.

79 Neb. 65
112 N.W. 304

SCHULENBERG
v.
STATE.

No. 14,720.

Supreme Court of Nebraska.

May 10, 1907.



Syllabus by the Court.

In a prosecution for unlawfully keeping intoxicating liquor for sale without a license, it is not error for the jury to taste of the liquors seized and produced in evidence at the trial, for the purpose of aiding in the determination of the question whether or not the liquor is intoxicating.


Commissioners' Opinion. Department No. 2. Error to District Court, Richardson County; Raper, Judge.

Matt Schulenberg was convicted of unlawfully keeping intoxicating liquors, and brings error. Affirmed.

[112 N.W. 304]

Reavis & Reavis, for plaintiff in error.

R. C. James, W. T. Thompson, Atty. Gen., G. G. Martin, Asst. Atty. Gen., and Edwin Talloon, for defendant in error.


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 was 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 of 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, 41 Pac. 689, 1 Kan. App. 51, 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...

To continue reading

Request your trial
10 practice notes
  • State v. Dascenzo., No. 2808.
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 31, 1924
    ...consider the question. Morse v. State, 10 Ga. App. 61, 72 S. E. 534; People v. Kinney, 124 Mich. 486, 83 N. W. 147; Schulenberg v. State, 79 Neb. 65, 112 N. W. 304, 16 Ann. Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N. W. 1040; Reed v. Terr, 1 Okl. Cr. 481, 98 Pac. 583, 129 Am. St. Rep. ......
  • Gallaghan v. United States, 6391
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 28, 1924
    ...Holding to the contrary are State v. Olson, 95 Minn. 104, 103 N.W. 727; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Schulenberg v. State, 79 Neb. 65, 112 N.W. 304, 16 Ann.Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N.W. 1041; Reed v. Territory, 1 Okl.Cr. 481, 98 P. 583, 129 Am.St.Rep. 8......
  • Nix v. City of Andalusia, 4 Div. 215
    • United States
    • Alabama Court of Appeals
    • June 15, 1926
    ...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......
  • State v. Baker
    • United States
    • United States State Supreme Court of Washington
    • March 25, 1912
    ...to misconduct. That on a trial of this character jurors might be permitted to smell and taste the liquor, see Schulenberg v. Nebraska, 79 Neb. 65, 112 N.W. 304, 16 Ann. Cas. 217; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Reed v. Territory, 1 Okl. Cr. 481, 98 P. 583, 129 Am. St. Rep. 861......
  • Request a trial to view additional results
10 cases
  • State v. Dascenzo., No. 2808.
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 31, 1924
    ...consider the question. Morse v. State, 10 Ga. App. 61, 72 S. E. 534; People v. Kinney, 124 Mich. 486, 83 N. W. 147; Schulenberg v. State, 79 Neb. 65, 112 N. W. 304, 16 Ann. Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N. W. 1040; Reed v. Terr, 1 Okl. Cr. 481, 98 Pac. 583, 129 Am. St. Rep. ......
  • Gallaghan v. United States, 6391
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 28, 1924
    ...Holding to the contrary are State v. Olson, 95 Minn. 104, 103 N.W. 727; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Schulenberg v. State, 79 Neb. 65, 112 N.W. 304, 16 Ann.Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N.W. 1041; Reed v. Territory, 1 Okl.Cr. 481, 98 P. 583, 129 Am.St.Rep. 8......
  • Nix v. City of Andalusia, 4 Div. 215
    • United States
    • Alabama Court of Appeals
    • June 15, 1926
    ...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......
  • State v. Baker
    • United States
    • United States State Supreme Court of Washington
    • March 25, 1912
    ...to misconduct. That on a trial of this character jurors might be permitted to smell and taste the liquor, see Schulenberg v. Nebraska, 79 Neb. 65, 112 N.W. 304, 16 Ann. Cas. 217; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Reed v. Territory, 1 Okl. Cr. 481, 98 P. 583, 129 Am. St. Rep. 861......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT