Phillips v. State , 156 Ala. 140 ( 1908 )

SIMPSON, J.

The appellant was convicted, under an indictment charging that he “sold spirituous, vinous, or malt liquors Avithout a license, contrary to law.” The bottle and its contents were offered in evidence, and admitted over the objection of the defendant. There is no intimation in the record, at this point, that there was any proposal for the jury to take the bottle out, in their retirement, “to be smelled or drunk or tasted.” — Wadsworth v. Dunnam, 117 Ala. 661, 668, 23 Sounth. 699. There ivas no error in permitting the bottle to be exhibited in the presence of the court.

The record shows that at the close of the testimony of McFarland, a witness, the solicitor requested the court to order the sheriff to- take charge of said witness and require him to make bond. It does not show why he wished him taken into custody, and merely states that the defendant excepted to the remark, and does not show whether the court sustained or overruled the exception, but goes on to state that the court did not order the sheriff to take charge of said witness.” No error is shown in this.

Subsequently the defendant moved the court not to allow the jury to take the bottle, before referred to, into the jury room with them, which motion the court overruled, and permitted the jury to carry the bottle with them. There was no error in this action of the court. It is proper for the jury to take with them into the jury room the instruments of evidence produced before them. In the case of Wadsworth v. Dunnam, 117 Ala. 661, 668, 23 South. 699, the bottles which were sought to be sent out with the jury were not bottles which had been in evidence, but bottles which were supposed to contain the same kind of cordial as that which had been sold. Besides, they were sought to be sent with the jury for the specific purpose of being “smelled, or drunk, or tasted.”

Charges 1, 2, 3, 4, 6, 7,' 9, and-10, requested by the defendant, were based ion the idea that the defendant could not be convicted if he had acted as the agent of the piirchaser in procuring the whisky. The act approved March 12, 1907, makes the defendant liable under such circumstances. Acts 1907, p. 366.

Charge 5, requested by the defendant, should have been given. — Hale v. State, 122 Ala. 85, 26 South. 236; Phillips v. State in M. S.

Charge 8, requested by the defendant, did not present any proposition of law based on the evidence, and was properly refused.

The court erred in sentencing the defendant for costs, allowing only 30 cents per day for his labor. The recent act requires that 40 cents per day shall be allowed. Acts Sp. Sess. 1907, p. 183, § 13. '

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Haralson and Denson, JJ., concur.