State v. Ling
| Citation | 199 N.W. 285,198 Iowa 598 |
| Decision Date | 24 June 1924 |
| Docket Number | 35966 |
| Parties | STATE OF IOWA, Appellee, v. W. B. LING, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 26, 1924.
Appeal from Taylor District Court.--H. H. CARTER, Judge.
THE defendant was charged by indictment with the crime of bootlegging. Upon a verdict of guilty, judgment was pronounced, from which he appeals.
Affirmed.
Wisdom & Kirketeg and Hunt & Chittenden, for appellant.
Ben J Gibson, Attorney-general, and John Fletcher, Assistant Attorney-general, for appellee.
Upon the trial, certain bottles containing liquor claimed by the State to be intoxicating, and to have been found in the possession of the defendant in his automobile, were introduced in evidence. Error is assigned on the refusal of the court to allow appellant to call members of the jury and examine them in support of his motion for a new trial, on his offer to show by them that certain of the bottles of liquor so found and introduced in evidence were taken to the jury room by the sheriff, without authority and without the knowledge of the defendant, and that members of the jury examined the liquor by the sense of smell, and stated that it was alcohol.
As said, the bottles and their contents were in evidence. Such being the case, it was at least within the discretion of the court to allow them to be taken by the jury to the jury room. Barker v. Town of Perry, 67 Iowa 146, 25 N.W. 100. As there said, Section 3717 of the Code prohibits only the taking of depositions to the jury room, and does not exclude any other evidence which is in any proper form to be considered by the jury. One of the questions in the case was whether the liquor in the bottles contained alcohol. With the liquor in evidence before them, the jurors would have had a right to make such an examination of it as it is claimed was made, to determine, in connection with the testimony of the witness, whether it was alcohol. State v. Young, 134 Iowa 505, 110 N.W. 292; Hraha v. Maple Block Coal Co., 154 Iowa 710, 135 N.W. 406; Thielepape v. State, 89 Tex.Crim. 493 (231 S.W. 769); Thompson v. State, 72 Tex.Crim. 6 (160 S.W. 685). In the last cited case, it was held that the jurors had a right to examine liquor introduced in evidence, by the sense of smell. While a test by that means may not be the best or most satisfactory by which to establish the character of a liquor, it would certainly be competent to show that the liquor had the smell of alcohol. All human testimony as to objects and events depends finally on the effect produced on some one or more of the senses. That alcohol has a distinctive odor is a matter of common experience. If all that appellant offered to show by the jurors had been established, we think no prejudicial error would have appeared. Louisville & N. R. Co. v. Berry's Admr., 96 Ky. 604 (29 S.W. 449). Since the court might properly have allowed the liquor in evidence to be taken to the jury room, and the examination claimed to have been made of it by the jurors was only such as they would have been entitled to make, no error is shown in refusing to receive the offered testimony or in overruling the motion for a new trial on that ground. It was not error to refuse to hear testimony to establish a state of facts which, if established, would not have been prejudicial. Any conclusion reached by the jurors from their examination, or any discussion based on their tests, inhered in the verdict. State v. Lauderbeck, 96 Iowa 258, 65 N.W. 158; State v. Beste, 91 Iowa 565, 60 N.W. 112; State v. Steidley, 135 Iowa 512, 113 N.W. 333.
Complaint is made of an instruction to the effect that, if the jury found beyond a reasonable doubt that intoxicating liquors were carried on the person of the defendant or in a vehicle, with intent to sell or dispose of the same by gift, the defendant should be found guilty. The instruction followed the language of the statute, Section 2461-a, Supplemental Supplement, 1915. This section does not provide a punishment for the giving of intoxicating liquor to another, and the question argued by counsel as to what would constitute a gift in violation of law is not involved. The statute makes it unlawful to carry on the person or in a vehicle intoxicating liquor, with intent to sell or dispose of the same by gift or otherwise. The defendant was charged with violation of this section. There was no error in the instruction.
Error is predicated on the refusal to send the jury to examine the automobile from which the witness...
To continue reading
Request your trial