67 Wash. 595 | Wash. | 1912
A. D. Baker was convicted of selling intoxicating liquor in a dry unit in Stevens county, in violation of the local option law, chap. 81, Laws of 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
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. State, 79 Neb. 65, 112 N. W. 304; People v. Kinney, 124 Mich. 486, 83 N. W. 147; Reed v. Territory, 1 Okl. Cr. 481, 98 Pac. 583, 129 Am. St. 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,
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 § 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 he was receiving barrels of bottled liquors, shipped into dry territory by a Spokane brewing com
It is complained that the expert chemist who made the analysis above mentioned was permitted to testify to the result of his tests, and to express his opinion as to whether the liquor in the bottle claimed by the state to have contained beer was intoxicating. This evidence was competent. Mayne v. State, 48 Tex. Cr. 93, 86 S. W. 329; Poston v. State, 83 Neb. 240, 119 N. W. 520; State v. Wills, 106 Mo. App. 196, 80 S. W. 311.
The jury retired to deliberate upon their verdict at four o’clock on Saturday afternoon. The record shows the following :
“Thereafter, to wit, at 9:05 p. m., the jury was again called into court by direction of the judge thereof, and the following proceedings were had and done: The Court: Mr. Foreman, have the jury arrived on a verdict as yet? The Foreman: We have not. The Court: Is there a probability they might arrive on a verdict before twelve o’clock? The Foreman: There is a possibility, but I can’t say as to the probability. The Court: I want to say this to you, that I have the authority to receive a verdict from the jury in this case, of guilty or not guilty Sunday, but I have no authority to receive a disagreement, and I am not going to keep you after twelve o’clock tonight, but I wish that you would do your best to arrive at a verdict if you can. I have no right to press you or push you, nor to in any way interfere with your consideration of the case, but if at that hour you make up your mind that you cannot agree in the case that will be the fact, I will hear you. If there is a possibility at that hour you might agree upon a verdict, I would keep you longer; that is, if the possibility is a strong possibility. I call you to give this notice to you in the event that it might aid you in your work. You may now retire to your jury room. Mr. Jesseph (counsel for appellant) : I want to take an exception to the instructions your honor has given the jury at this time, on the ground and for the reason that they are prejudicial to the defendant.”
Other objections are made to evidence admitted, and it is also contended that' the prosecuting attorney was guilty of misconduct in his argument to the jury. Without discussing these assignments, we state our conclusion that they are devoid of merit.
The appellant has been awarded a fair trial, the evidence was sufficient to sustain the verdict, and the record shows no prejudicial error. The judgment is affirmed.
Dunbar, C. J., Morris, Chadwick, and Ellis, JJ., concur.