STATE V. DASCENZO, 1924-NMSC-050, 30
N.M. 34, 226 P. 1099 (S. Ct. 1924)
SUPREME COURT OF NEW MEXICO
1924-NMSC-050, 30 N.M. 34, 226 P. 1099
Appeal from District Court, Colfax
County; Lieb, Judge.
Angelo Dascenzo was convicted of a violation of the
prohibition law, and he appeals.
1. In a prosecution for the unlawful possession and sale of
intoxicating liquor, it is not error to permit the jurors, in the presence of
the court, the defendant, and counsel, to smell the liquor which has been
received in evidence.
2. Evidence of liquor found in a restaurant adjoining the
defendant's soft drink parlor is admissible under a count in an information
charging unlawful possession for the purpose of sale, where the defendant's
connection or control of such restaurant is an issue of fact in the case.
3. Instructions to the jury should be considered as a whole,
and when, so considered, they fully protect the legal rights of defendant, he
cannot complain.
Crampton, Phillips & Darden, of
Raton, for appellant.
Milton J. Helmick, Atty. Gen., and John
W. Armstrong, Asst. Atty. Gen., for the State.
Bratton, J. Parker, C. J., and Botts, J.,
concur.
{*35} {1} OPINION OF THE COURT. The information filed by
the district attorney contains six counts, each charging the appellant with a
violation of the provisions of chapter 151, Laws 1919, commonly called the
Prohibition Law. The first five counts charge him with sales of intoxicating
liquor, and the sixth charges him with keeping the same for sale. Counts 4 and
5 were dismissed, and convictions had upon the remaining ones, following which
a jail sentence was imposed, and this appeal taken.
{2} 1. During the trial the
state introduced in evidence a bottle containing some of the liquor taken from
the appellant's premises. Afterwards, and in the presence of the court, the
appellant, and counsel, at least one of the jurors was permitted, over appellant's
objections, to smell the contents of this bottle, and this is assigned as
error. The question is one of original impression here, as it has never been
previously presented to this court. It is one with respect to which the courts
of other states are not altogether in harmony. Appellant relies upon decisions
from Alabama, Kansas, and Texas, as well as the United States Circuit Court of
Appeals of the Eighth Circuit, to sustain his contention. He cites Wadsworth v.
Dunnam, 117 Ala. 661, 23 So. 699; State v. Lindgrove, 1 Kan. App. 51, 41 P.
688; State v. Eldred, 8 Kan. App. 625, 56 P. 153; State v. Coggins, 10 Kan.
App. 455, 62 P. 247; State v. Schmidt, 71 Kan. 862, 80 P. 948; and Callahan v.
U. S., 298 F., recently decided by the United States Circuit Court of Appeals
of the Eighth Circuit. He further relies upon Dane v. State, 36 Tex. Crim. 84,
35 S.W. 661, and Parker v. State, 75 S.W. 30, as declared the position of the
Court of Criminal Appeals of Texas upon this {*36}
question. These cases, however, are not in harmony with the later cases
from that court which hold that in a case like this, where the defendant denies
altogether the sale of liquor, it is not error to allow the jury to smell the
liquor after it has been received in evidence. Thompson v. State, 72 Tex. Crim.
6, 160 S.W. 685; Lerma v. State, 81 Tex. Crim. 109, 194 S.W. 167; Atwood v.
State, 96 Tex. Crim. 249, 257 S.W. 563; and Cook v. State, 96 Tex. Crim. 586,
258 S.W. 1058. With this condition obtaining concerning the decisions from the
Court of Criminal Appeals of Texas, appellant must needs rely upon the
decisions from Alabama, Kansas, and the United States Circuit Court of Appeals
to sustain him.
{3} These cases proceed upon
the theory that to permit jurors to smell liquor authorizes them to render a
verdict upon private grounds of belief, without any way to determine whether
the verdict is according to or against the evidence; that the intoxicating
character of liquor is one of the material things incumbent upon the state to
prove, and that this should be done by evidence, oral or written. We cannot
concur in this view, as we believe these cases state the minority rule and are
not founded upon logic or reason. No juror can receive evidence without the
exercise of some of his senses. Jurors are permitted to exercise their sense of
sight, in seeing the witnesses, including the defendant, as they testify, and
of observing their demeanor; they are also permitted to exercise their sense of
hearing, in listening to the tone, as well as the steadiness or unsteadiness,
of the voice, all for the purpose of deciding whether or not such witnesses are
testifying truthfully or falsely. When physical things are introduced in
evidence, jurors are permitted to look at them, to decide what they think concerning
them. When liquor is introduced in evidence, jurors are allowed to look at it,
and to take into consideration its color and appearance in deciding what they
think it is. Again, if a bullet is introduced in evidence in a homicide case,
and it becomes material to determine its size, caliber, or anything else
concerning its physical appearance, jurors are permitted to look at it, and
frequently take it in their hands and feel it, in order {*37}
to determine what they think about it, and how its size and appearance
harmonizes or conflicts with other evidence introduced in the case.
{4} We can appreciate no
distinction between these matters of common procedure and allowing jurors to
smell liquor after it has been introduced in evidence. By so doing, the juror
did not gain independent evidence upon which to reach his conclusion, but
simply tested the evidence already introduced, in order to properly determine
its truth or probative value. In deciding every case, jurors must necessarily
take into consideration their knowledge and impressions founded upon experience
in their everyday walks of life, and the fact that these things affect them in
reaching their verdict cannot be reversible error, because, indeed, jurors
without possessing such knowledge and impressions could not be had. After the
liquor in this character of a case has been received in evidence, to deny
jurors the right to look upon it, smell of it, and take into consideration its
appearance and odor in determining what it is, results in closing their eyes
against the acquisition of the truth. These views have been expressed by the
great weight of authority throughout the several states which have had occasion
to consider the question. Morse v. State, 10 Ga. App. 61, 72 S.E. 534; People
v. Kinney, 124 Mich. 486, 83 N.W. 147; Schulenberg v. State, 79 Neb. 65, 112
N.W. 304, 16 Ann. Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N.W. 1040; Reed
v. Terr. 1 Okla. Crim. 481, 98 P. 583, 129 Am. St. Rep. 861; State v. Baker, 67
Wash. 595, 122 P. 335; Enyart v. People, 70 Colo. 362, 201 P. 564; State v.
Simmons, 183 N.C. 684, 110 S.E. 591; Troutner v. Commonwealth, 135 Va. 750, 115
S.E. 693.
{5} 2. Appellant vigorously
complains of the action of the trial court in permitting the witness Thacker,
who was a deputy sheriff, to testify that he assisted in making a raid of
appellant's soft drink parlor, called "Over the Top," during which he
found a bottle of corn whisky in a restaurant adjoining the soft drink parlor
referred to. There is testimony that the soft drink parlor, the restaurant, and
a tailor shop are
{*38} all in one
building, but separated by partition walls, with doors opening from one to the
other; that the appellant was in charge, and had the keys to various rooms that
the officers wanted to enter, and said he was in charge of the business. It
further appears that there were found in this soft drink parlor referred to
many whisky glasses, empty jugs, and empty glass bottles and jars, all of which
smelled of having contained corn whisky, and, furthermore, there is positive
proof of several sales of corn whisky at the rate of 50 cents per drink. The
appellant testified that he had rented the entire building, and had verbally
sublet the restaurant portion to one John Accomonda, who conducted the restaurant
business. Whether the appellant had in fact sublet that portion of the
building, or just what connection he bore to it, was a matter for the jury to
decide. If they disbelieve that he had sublet it, and concluded that he was in
possession of it, the testimony concerning this bottle of corn whisky found
therein was plainly admissible, in connection with all the other facts in the
case, to determine his guilt under the sixth count of the information, which
charged him with possessing liquor for the purpose of sale.
{6} 3. In paragraph 6 of the
court's instruction this language was used:
"If the facts above stated, as to any one of the
four counts, to wit, 1, 2, 3, and 6, contained in the information, are proved
to your satisfaction and beyond a reasonable doubt, by evidence in this case,
it will then be your duty to find the defendant guilty in manner and form as
charged in the information. But if such facts are not so proven, or if you have
a reasonable doubt of the defendant's guilt, it will then be your duty to find
the defendant not guilty."
{7} Appellant excepted to
this instruction upon many grounds, among them being that it authorized the
jury to consider all of the evidence in determining his guilt upon any one of
the counts; that it authorized his conviction upon all of the counts, if the
jury found him guilty upon any one of them; and that it failed to
{*39} authorize his conviction upon a part of
them, and his acquittal upon the others. If this instruction stood alone and
independent of the remaining ones, it might well bear the interpretation
contended for; but, when it is considered in connection with the remainder of
the instructions, we think it is not subject to the criticism counsel directed
against it. By the second, third, fourth and fifth paragraphs, the guilt or
innocence of the defendant upon the four counts remaining in the information
after the dismissal of counts numbered 4 and 5, were separately explained to
the jury in clear and unmistakable language. To illustrate: Paragraph 2 submitted
his guilt upon the first count of the information in this language:
"The defendant is presumed to be innocent, and
before you would be justified in finding him guilty, it devolves upon the state
to prove to your satisfaction and beyond a reasonable doubt, upon the first
count, that on or about the 4th day of April, 1922, at the county of Colfax and
state of New Mexico, the said defendant did unlawfully sell unto one W. P.
Walkup intoxicating liquor containing alcohol, said intoxicating liquor not being
then and there denatured or wood alcohol or grain alcohol intended and used for
mechanical, medicinal, or scientific purposes only, nor wine intended and used
for sacramental purposes only."
{8} By paragraph 7 of the
instruction, the jury was expressly told to consider each of said counts
separately, and to determine the appellant's guilt or innocence upon each count
separately. This instruction is in these words:
"Each one of said counts should be considered by
you and passed upon separately, as to the guilt or innocence of the defendant
as to such count. Verdicts of guilty and not guilty will be handed you,
covering each one of the four counts above mentioned, and it will be your duty
to pass upon and determine the guilt or innocence of the defendant as to each
one of said four counts separately."
{9} When the several portions
of the instructions are considered together, it clearly appears that the jury
could not have been misled in the manner complained of, as they must have
understood the nature of the several charges, and that they must consider them
separately and independently of each other. Under
{*40}
the rule now firmly established in this jurisdiction, instructions must be
considered as a whole, and when, so viewed, they fully protect the rights of
the defendant, he cannot complain. Territory v. Gallegos,
17 N.M. 409,
130 P.
245; State v. Ellison,
19 N.M. 428,
144 P. 10; State v. Rodriguez,
23 N.M. 156,
167 P. 426, L. R. A. 1918A, 1016; State v. Crosby,
26 N.M. 318,
191 P. 1079.
{10} 4. What we have just
said disposes of the fourth and last error assigned. By it the appellant
contends that the eleventh instruction, which defines a reasonable doubt, is
incorrect, because it fails to affirmatively direct the jury to consider each
of the counts in the information separately, and to apply the reasonable doubt
doctrine in that manner, giving to him its benefit in considering each of the
charges, but, to the contrary, allows and directs them to consider the entire
mass of evidence in passing upon the charge contained in each count; that it
fails to advise them that, should they entertain a reasonable doubt concerning
any one or more of such counts, he should be acquitted as to them. We have
reviewed the several paragraphs of the charge which must be taken into
consideration in passing upon this contention, and we think it is apparent that
the several offenses were separately submitted, and the jury expressly told to
consider them in that manner. The authorities hereinbefore cited, declaring the
rule that the instructions must be considered as a whole, are applicable and
controlling here.
{11} The judgment of the
lower court, being without error, should be affirmed; and it is so ordered.