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156 Ala. 140

Phillips v. State

Supreme Court of Alabama

Decided June 30, 1908

Supreme Court of Alabama · decided 1908-06-30

<p> Retailing Liquor Without License. </p> <p>1. Evidence; Demonstrative Evidence; Bottles. — In the absence of a proposal that the jury take the bottle out to the jury room to be smelled or drunk or tasted, it was not error to permit the bottle to be exhibited as evidence, nor was it improper to permit the jury to take said bottle with them into the jury room.</p> <p>2. Appeal; Objection; Necessity for. — Where the record shows that defendant excepted to a remark of the solicitor requesting the court to take a certain witness into custody and to detain him, but the record does not show whether the court sustained or overruled the objection, although the record states that the court did not order the witness talfen into custody, a sufficient objection is not shown to present anything relative thereto for the review of this court.</p> <p>3. Intoxicating Liquors; Sale; Agent; Offense. — One acting as the agent of the purchaser in procuring an unlawful sale of liquor is liable to conviction under the express provisions of General Acts 1907, p. 356.</p> <p>4. Charge of Court; Reasonable Doubt of Juror. — A charge asserting that if one of the jury have a reasonable doubt of the defendant’s guilt, the defendant could not be convicted, is a proper charge, and its refusal erroi;.</p> <p>5. Same; Applicability to Case. — A charge not presenting any proposition of law applicable to the evidence in the case is properly refused.</p> <p>6. Costs; Sentence For; Amount per Diem. — Where defendant is sentenced to hard labor to pay costs in criminal convictions the per diem allowance should be 40 cents per day since the passage of the act of 1907. (General Acts, Special Session 1907, p. 183.)</p>

Relies on Hale v. State · Wadsworth v. Dunnam

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1908-06-30

How this case has been cited

Cited by 10 later decisions — most recently May 1948

10 state decisions

6019081910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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SIMPSON, J.

¶1The 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 *143tasted.” — 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.

¶2The 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.

¶3Subsequently 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.”

¶4Charges 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.

¶5*144Charge 5, requested by the defendant, should have been given. — Hale v. State, 122 Ala. 85, 26 South. 236; Phillips v. State in M. S.

¶6Charge 8, requested by the defendant, did not present any proposition of law based on the evidence, and was properly refused.

¶7The 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. '

¶8The judgment of the court is reversed, and the cause remanded.

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