Troutner v. Commonwealth

• Decision Date: 18 January 1923
• Citation: 115 S.E. 693
• Parties: TROUTNER. v. COMMONWEALTH.
• Court: Virginia Supreme Court

115 S.E. 693

TROUTNER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 18, 1923.

Error to Circuit Court, Norfolk County.

B. F. Troutner was convicted of having in his possession for sale more than one gallon of ardent spirits, and he brings error. Reversed.

Jas. G. Martin, of Norfolk, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Com. monwealth.

WEST. J. B. F. Troutner, the accused, was convicted of having in his possession, for sale, more than one gallon of ardent spirits, and sentenced to one month's confinement in jail and to pay a fine of $50. He assigns error.

In May, 1921, officers searched the rented house in which the accused and his family lived, and found two one pint bottles of corn liquor, which it is admitted belonged to the accused. Outside of the house, 10 or 20 feet from the northwest corner thereof, they found two one-gallon bottles of corn liquor, buried in the ground. The accused had been living in the house only three months, andtestified, without contradiction, that he did not own the liquor found outside of the house, or know where it came from, or who put it there, and was in no way engaged in the liquor business. The accused produced his lease, which was filed in evidence, and testified further, without contradiction, that the boundary line of the property he leased was nearer to the house than where the two large bottles of liquor were found. The four bottles of liquor were made a part of the evidence in the case.

The first assignment of error is that the court, at the request of the commonwealth's attorney allowed the jury to take the four bottles of whisky to their room, with instructions from the commonwealth's attorney to smell and taste it, and to compare their smell and taste and see if they were all the same run of liquor from the same still.

The question raised by this assignment is of first impression in this state. The authorities in other jurisdictions are somewhat in conflict as to the propriety of permitting jurors to taste of liquor in prosecutions for violations of the liquor laws, but according to the better rule, it is proper, where ardent spirits are introduced in evidence, to permit the jurors to smell them, and. if desired for the purpose of assisting them in passing upon the evidence, with the approval of the court, to taste them in the presence of the court. In passing upon questions of fact, jurors have the right to use all their senses, or such of them as may be helpful in reaching a proper conclusion.

In Reed v. Territory, 1 Okl. Cr. 4S1, 98 Pac. 583, 129 Am. St. Rep. 861, the court said:

"Both upon reason and authority we submit that there are three channels through which tribunals of fact receive evidence, namely, inspection, documents and oral testimony. No jury ever decided any controverted question of fact without using one or more of their five senses. * * * In this case the jurors were permitted to smell the contents of the bottle offered in evidence, to enable them to decide as to whether the prosecuting witness had told the truth about it being whisky. By this the jurors did not learn any facts independent of the evidence; they simply tested the facts in evidence by the use of one of their senses, or, in other words, they were permitted to hold an autopsy on a part of the evidence already before them, to test its true character. * * * If the jury can exercise the power of inspection through the sense of sight, why should they not exercise the power of inspection through any or all of their other senses? We hold that they have this power as to all objects and things introduced in evidence before them, subject to the discretion and control of the trial court, a proper understanding of which depends upon the common experience of men."

In People v. Kinney. 124 Mich. 486. S3 N. W. 147, it was held not to be error to allow jurors to taste whisky which had been introduced in evidence on the trial.

In Schulenberg v. State, 79 Neb. 65, 112 N. W. 304, 16 Ann. Cas. 217, it was held, under a prosecution for unlawfully keeping...