Troutner v. Commonwealth , 135 Va. 750 ( 1923 )

West, J.,

delivered the opinion of the court.

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 $50.00. 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, ten or twenty 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 and testified, 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 whiskey 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. 481, 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 whiskey. 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, 83 N. W. 147, it was held not to be error to allow jurors to taste whiskey 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 intoxicating liquor for sale without a license, not error to permit the jury to taste the liquor seized and produced in evidence, for the purpose of determining whether or not it was intoxicating.

In the absence of specific statutory direction, it is generally left to the sound discretion of the court to say what the jury will be permitted to carry to their room on retiring to consider of their verdict. That discretion, except when abused, will not be disturbed by this court.

In the ease of Taylor v. Commonwealth, 90 Va. 117, 17 S. E. 812, the prisoner’s gun and four cartridge hulls fired from that gun during the trial were introduced in evidence by the prisoner to show that they were struck by the plunger in Ms gun differently from the two cartridge hulls which the prosecution had put.in evidence, which had been picked up on the scene of the killing. The gun was given to the jury in their room, but they were not told to look at, examine or consider it, but they took the gun apart and examined the plunger and saw that the gun had been recently tampered with and fixed so as to strike and explode the cartridges differently from those which had been used by the murderers. It was held that this was not error, but see reference to the Taylor Case in Noell’s Case, ante p. 600, 115 S. E. 679, decided today.

The purpose of the retirement is to enable -the jurors to confer and deliberate upon the evidence and their recollections and impressions thereof. For like reasons it is proper when an object or thing is introduced in evidence, except where its inherent qualities make it improper, to permit the same to be taken to the jury room, where the jurors may • examine and discuss it and thereby test the facts shown in evidence. In neither ease can it be said that the jurors are taking evidence out of the presence of the accused, or giving evidence without being sworn.

On account of their intoxicating qualities, and the danger of members of the jury abusing the privilege, while in their retirement, intoxicating liquors should be excluded from the jury room. And it was reversible error for the court to allow the corn whiskey in the four bottles to be taken to the jury room with instructions from the Commonwealth’s attorney to the jury to smell and taste it, and compare its smell and taste, and ascertain if it were all the same run of liquor from the same still.

In the case of Wadsworth v. Dunnam, 117 Ala. 661, 668, 23 So. 699, p. 702, the Alabama court said:

“The proposal that the jury on their retirement should take with them bottles of the kind of cordial sold defendant by the plaintiffs, ‘to be smelled or drank or tasted,’ as the jury or any number of them chose, was properly overruled. The purpose was that the jurors, if indulging the opportunity afforded them, from personal experience, should determine the controverted fact whether the cordial was intoxicating. Laying aside all other objections, it is enough to say if the cordial was intoxicating, as insisted by the defendant, it was the duty of the court to prohibit, not to license, its introduction into the jury room.”

The next assignment of error relates to the action of the court in striking out the words underscored in the following instruction:

“The court instructs the jury that they should consider the character evidence for the defendant, and evi■dence of. good character may itself make a reasonable ■doubt.”

Evidence of the good character of the accused should always be considered by the jury in determining his guilt. If, notwithstanding such evidence, they are ■satisfied beyond a reasonable doubt that the defendant is guilty, they should convict, but if such evidence is believed by them as a substantive fact, which disproves the charge by discrediting the witnesses upon whose "testimony it rests, or raises in their minds a reasonable ■doubt of his guilt, they should, notwithstanding the other evidence, acquit. Since evidence of good character is not always believed by the jury and does not always raise a reasonable doubt of the guilt of the defendant, the instruction, in the form in which it was oflered, was calculated to mislead the jury, and we find .no error in the action of the court in altering the same.

The remaining assignment is that the court erred .in not setting aside the verdict as contrary to the law and the evidence, and as not supported by the evidence. The accused had the right under section 65 of the pro.hibition act (Laws 1918, c. 388) to have the two small bottles of liquor in his home. The two large bottles were not found within his curtilage or enclosure, nor within the boundaries of his lease, and their finding was not, therefore, prima facie proof of guilt under section .28 of said act. Besides, there is no evidence showing that the same were ever in his actual possession or that he had any knowledge that they were buried in the ..ground so near his premises.

For the foregoing reasons, we are of opinion that the verdict of the jury is without evidence to support it and the judgment complained of erroneous. The judgment will be reversed and the ease remanded for a new trial, if the Commonwealth shall be so advised.

Reversed.