State v. Burcham

• Decision Date: 27 January 1920
• Docket Number: 15500.
• Citation: 187 P. 352,109 Wash. 625
• Court: Washington Supreme Court
• Parties: STATE v. BURCHAM.

187 P. 352

109 Wash. 625

STATE v. BURCHAM.

No. 15500.

Supreme Court of Washington

January 27, 1920

Department 2.

Appeal from Superior Court, Kittitas County; John B. Davidson Judge.

D. B Burcham was convicted of unlawfully having in his possession more than two quarts of intoxicating liquor other than beer and he appeals. Affirmed.

Eugene E. Wager, of Ellensburg, for appellant.

Arthur McGuire, of Ellensburg, for the State.

BRIDGES J.

The appellant was charged by information with unlawfully having in his possession more than two quarts of intoxicating liquor other than beer. The jury returned a verdict of guilty. A motion for a new trial was denied. From the judgment upon the verdict this appeal is taken.

At the trial the state introduced in evidence some 24 pint bottles, alleged to contain whisky. All of these except one were under seal and had not been opened. The appellant contends that the evidence was insufficient to show that the contents of the bottles, or at least more than two quarts thereof, were intoxicating liquor other than beer. It would not serve any useful purpose to here recite the testimony on this question; suffice it to say that a careful examination of the whole record convinces us that there was ample testimony tending to show that these bottles contained a whisky.

It is next contended that it was error for the court to send these exhibits to the jury room, and allow the jury to keep the same while it was deliberating on its verdict. It has been almost the universal practice in this state for the trial court to allow the jury to take with it, while deliberating on its verdict, any and all exhibits introduced in the case, other than depositions. This court, in a number of cases, has held that it is not error for the trial court to send to the jury, while deliberating on its verdict, exhibits which have been duly received in evidence. Section 351, Rem. Code 1915; Dr. Jack v. Territory, 2 Wash. T. 101, 3 P. 832; State v. Wester, 21 Wash. 63, 57 P. 361; State v. Baker, 67 Wash. 595, 122 P. 335. The court, therefore, did not commit prejudicial error in sending to the jury the exhibits in this case.

During the argument to the jury a dispute arose between the attorneys whether there was sufficient testimony as to the contents of the bottles to take the case to the jury. During this dispute the court in the presence of the jury said that the bottles would be with the jury while it was deliberating on its verdict and it could convince itself in any way it chose whether the contents thereof consisted of whisky. The appellant contends that the court erred in telling the jury in substance, that it could smell and sample the contents of the various bottles, for the purpose of determining whether they contained whisky. It would not have been prejudicial error to have allowed the jury to smell and taste this liquor during the progress of the trial, for the purpose of assisting it to determine the nature of the liquor. If that would not have been error, it was not prejudicial error to allow the jury to take the bottles to the jury room, and, while deliberating on its verdict, smell and sample the contents thereof for the like purpose. In other words, we hold that it was not necessarily prejudicial error for the court to send such exhibits to the jury, or to permit the jury, while deliberating on its verdict, to smell and sample the contents of the...