State v. Baker

• Decision Date: 25 March 1912
• Citation: 67 Wash. 595,122 P. 335
• Court: Washington Supreme Court
• Parties: STATE v. BAKER.

122 P. 335

67 Wash. 595

STATE v. BAKER.

Supreme Court of Washington

March 25, 1912

Department 2. Appeal from Superior Court, Stevens County; D. H. Carey Judge.

A. D Baker was convicted of selling intoxicating liquor in violation of local option law, and he appeals. Affirmed.

Jesseph & Grinstead, for appellant.

Howard W. Stull, for the State.

CROW J.

A. D Baker was convicted of selling intoxicating liquor in a dry unit in Stevens county, in violation of the local option law chapter 81, Session Laws 1909, and has appealed.

During the trial, two bottles (Exhibits 12 and 13) taken from appellant's place of business located within the dry unit, and which the state alleged contained intoxicating liquors, were admitted in evidence. A portion of the contents of each had been analyzed by an expert chemist. After making his analysis, he sealed the remaining contents in the original bottles. One bottle had been filled by the sheriff from a keg containing wine found in appellant's place of business. The other, claimed to contain beer, was filled, sealed, and unopened when found by the sheriff at the same time and place. The evidence was sufficient to show that appellant, by his authorized agent, had made a sale of beer from a similar bottle to the prosecuting witness. The jury, without objection, were permitted to take these sealed exhibits to the jury room. It was afterwards shown that they opened them and smelled and tasted their contents. Appellant contends that in so doing they were guilty of misconduct, and that their verdict was returned upon private knowledge thus obtained, and not upon competent evidence admitted during the trial. The trial judge, in the exercise of his discretion, might have permitted the jury to smell and taste the contents of the bottles during the trial, without requiring them to do so. This was not done; but the bottles were sent to the jury room without objection on the part of appellant, and the jurors naturally supposed it would be proper for them to make any reasonable examination of their contents. The issue was whether the liquor, especially that in the bottle alleged to contain beer, was intoxicating. If the jurors might have been permitted to smell and taste the liquor during the trial, we fail to understand how the occurrence here complained of amounted 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; State v. McCafferty, 63 Me. 223. There is a conflict of authority on this question; but the cases cited meet with our approval.

Appellant further contends the trial judge erred in admitting these Exhibits 12 and 13 in evidence. It was shown that the contents were in the same condition as when taken, save that a small portion had been removed for analysis. These liquors, claimed to be intoxicating and found in appellant's place of business, were admissible as tending to show the character of his business, nothwithstanding the fact that they were seized a few days after the date of the alleged unlawful sale. Starbeck v. State, 53 Tex. Cr. R. 192, 109 S.W. 162; Klepfer v. State, 121 Ind. 491, 23 N.E. 287.

It is contended the trial judge erred in admitting a letter from the United States internal revenue collector, in which, under seal, he certified that a special tax stamp had been issued to appellant as a retail dealer in malt liquor. This instrument was offered under section 20 of the local option law. Appellant contends it was not a certified copy, and was therefore incompetent. Without passing upon the sufficiency of the certificate, we hold its admission, if error, could not have been prejudicial, as appellant himself testified that he had purchased and paid for such a special tax stamp, or license, and that it had been issued to him.

A number of expense bills and freight receipts issued by an agent of the Idaho & Washington Northern Railway Company tending to show shipments of casks of bottled beer from the Inland Brewing & Malting Company of Spokane to the appellant, were admitted in evidence. Appellant contends that they were incompetent; that they were not originals; and that they did not tend to show any sale of intoxicating liquor as charged. Other evidence discloses the fact that by using carbon sheets these receipts and bills were made at the same time as the originals, which had been delivered to appellant, and could not be produced by the state; and that the casks had been delivered at his place of business by a drayman, who did his hauling, and whom he paid. Upon the charge of selling intoxicating liquors these facts and the exhibits were competent evidence as tending to show the character of appellant's place of business and the business which he was transacting. If...