Cartwright v. State

By oral argument and logical brief in support of the motion it is urged that the fact that the jury in the absence of the appellant during the trial smelled a jug supposed to contain intoxicating liquor which had theretofore been offered in evidence and its contents testified to as being whisky, was error for which the case should be reversed. It is without dispute that testimony had already been given by witnesses that the contents of the jug in question was whisky, and that the jug had been introduced in evidence. No effort was made by appellant either by procuring affidavits or by the introduction of oral testimony to show that any of the jurors received evidence by way of their olfactories in addition to or different from that already orally detailed by witnesses. In the absence of some showing of injury it is not quite clear to this court how a reversal might properly be ordered for the reason urged. It is not everything that takes place in the absence of a defendant upon trial for which a reversal should be ordered. There must be either an actual showing of injury or a showing of facts from which injury might reasonably be inferred. Ordinarily, demonstrative evidence which has been admitted may be exhibited to the jury or examined or handled by them, and it has frequently been held that such evidence may properly be carried into the jury room by the jury in their retirement. In ordinary cases if this had taken place, in order to soundly base a complaint upon some wrongful use made of such character of evidence by the jury, the court would require that the accused assume the burden of showing such wrongful use, or its probable injurious effect. As above stated, no effort was made by appellant along this line. We are compelled to conclude that the motion for rehearing should be overruled and it is so ordered.

Overruled.