State v. Phillips ( 1931 )

All of the kegs, bottles, jugs and other containers containing liquid were sent as exhibits to the jury room with the jury when they retired for their deliberation. It appears that during the deliberations of the jury certain of the jurors opened the containers and sampled the contents. Moreover, it appears that the county attorney, in argument, told the jury in substance, that they had the right to test the contents of the containers by drinking it to satisfy themselves in relation thereto.

It is the contention of the state that all of these liquids in each and every one of the containers sent to the jury room contained intoxicating liquors.

In State v. Reilly, 108 Iowa 735, this court said:

"Where, during the progress of a trial, but before final submission of the case, a juror indulges in the use of intoxicating liquor, we have held that the verdict should not be disturbed unless prejudice is shown; that the fact alone that the liquor was taken is not enough to vitiate the verdict. Hemmi v. Railway Co., 102 Iowa 25, and other cases cited. On the other hand, the rule is established that prejudice will be presumed if the liquor is drunk after the jury has retired to consider the case. State v. Baldy, 17 Iowa 39; Berry v. Berry, 31 Iowa 415."

This holding is based on the proposition that the parties to an action have a clear right to the cool, dispassionate and unbiased judgment of each juror.

Moreover, the drinking by the jurors of liquids claimed to be intoxicants during their deliberation on the question whether the liquids are intoxicating is erroneous and prejudicial. The question here is whether prejudice arose by reason of permitting the jury to sample the contents of the containers in which the State contends intoxicating liquors were contained.

Section 11503 of the Code of 1927 is as follows:

"What jury may take with them. Upon retiring for deliberation, the jury may take with them all books of accounts and all papers which have been received as evidence in the cause, except depositions, which shall not be taken unless all the testimony is in writing and none of the same has been ordered to be struck out."

It will be noted that the statute only prohibits the sending of depositions as exhibits with the jury when deliberating. This court, however, has said in reference to this section in State v. Young, 134 Iowa 505, l.c. 520:

"The language is not mandatory, and therefore the court, in the absence of a request, does not err in omitting to send the papers (Exhibits) out with the jury."

See, also, Hraha v. Coal Co., 154 Iowa 710.

Generally speaking, whether exhibits shall go with the jury to the jury room is a matter within the sound discretion of the trial court. Under some circumstances, it is proper that the exhibits should be examined by the jury. The question before us is whether liquids in containers, which liquids the State claims to be intoxicating liquor, should be sent with the jury, one of the questions being whether the liquids were in fact intoxicating.

In State v. Ling, 198 Iowa 598, the defendant was charged by indictment with the crime of bootlegging. 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. This court said:

"* * * it was at least within the discretion of the court to allow them (bottles) to be taken by the jury to the jury room."

The court continues upon a discussion of the foregoing assigned error to hold, in substance, that it was proper for the jurors to examine the liquids to ascertain by the sense of smell whether they were in fact intoxicating.

In State v. Elmers, 198 Iowa 1041, the defendant was charged with the crime of maintaining a liquor nuisance. This court said:

"The two jugs that it was claimed were found on the premises, with their contents, were introduced in evidence, and were taken to the jury room. It appears that one of the jurors smelled of the contents, and another tasted them. There is no claim that any of the jurors drank the liquor, or did more than smell and taste it. This was not prejudicial."

Should the jury be permitted to either smell or taste or otherwise endeavor to personally determine whether liquor, which has been introduced in evidence, is in fact intoxicating? Upon what principle can such conduct be justified? Suppose that before the trial of a case a number of experts had been engaged by either side to sample, examine and determine whether the liquor was intoxicating, and these witnesses were produced by either side at the trial, one class of witnesses claiming the liquor to be intoxicating and the other class of witnesses claiming it was not intoxicating. Why should the jury be permitted to make witnesses of themselves and in the absence of the defendant, give evidence, each to the others, not subject to cross-examination, as to what, in their opinion, was the character of the liquor? This question has been well considered and clearly discussed in the case of People v. Elias, 147 N.E., 472 (Ill.). The court said:

"To permit the jury to sample intoxicating liquor for the first time while they are considering their verdict is to permit them to receive evidence after the cause has been submitted to them for decision, and amounts to a denial to the accused of the right to appear and defend against such evidence and to be represented by counsel. It is very important for the accused and his counsel to be able to perceive exactly what impression is being made upon the jury by any portion of the evidence given on his trial. It is probably unnecessary to say that it would be improper for the jury to determine the intoxicating effect of liquor by sampling it in the courtroom in the presence of the accused and under the supervision of the judge, but it would be all the more objectionable to permit the sampling to be done in the jury room after the case had been placed in the hands of the jury. We can think of no useful purpose to be served by permitting intoxicating liquors to be taken by the jury on their retirement, and it is apparent that the defendant's rights may be prejudiced by permitting it to be done."

Manifestly, a witness who had not properly qualified as an expert would not be permitted to give his opinion in evidence as to whether the liquor in question was intoxicating or not. Why should an unqualified juror be permitted to give his evidence to the other jurors on the subject, or why should he be permitted to try to make up his own mind on the subject when he has not shown himself to have had any experience in the matter or in any sense to be an expert on the question?

Under the circumstances of this case, the court might very properly have exercised its discretion and not sent these exhibits to the jury room.

The smelling, tasting and drinking of the exhibits by the jury in this case, as disclosed by the record, constituted prejudicial misconduct. In so far as this holding may be in conflict with State v. Ling, 198 Iowa 598, and State v. Elmers, 198 Iowa 1041, the same should be overruled. I would reverse.

Justices ALBERT and WAGNER concur in this dissent.