State v. Stapleton ( 1923 )

PER CURIAM.

Defendant was convicted of selling intoxicating liquor in violation of law and appealed from an order denying a new trial.

The sole question presented in .support of the appeal is whether the trial court abused its discretion in refusing a new trial for the alleged misconduct on the part of the jury. We answer it in the negative.

The affidavits to the effect that two of the jurors entered upon the trial, notwithstanding expression to the contrary when examined in their selection to serve, with preconceived opinions of guilt, were controverted by the jurors accused, thus presenting a question of fact for the trial court. On the record thus presented this court is without right of interference with the decision of the trial court thereon.

The further point that there was misconduct on the part of the jury in their act of turning a part of the liquor alleged to have been sold, which was contained in a bottle received as evidence on the trial and marked Exhibit A, into a saucer or other container and touching a lighted match thereto for the purpose of testing its fluid or alcoholic contents is not sustained. If there was misconduct in that respect the record discloses no substantial prejudice to the rights of defendant and therefore no ground for a new trial.

Order affirmed.