Morling, J.
The indictment charges that defendant on or about the 16th day of May, 1929, did maintain a private garage for the purpose of keeping therein intoxicating liquor with intent to sell, give away or dispose of the same contrary to law. •The sheriff and deputy sheriff testify, in substance, that in the evening of May 16, 1929, under search warrant, they searched defendant’s premises, found about
4y2
cases of beer, two kegs and a jug of wine, a number of cases of bottles empty or partially so, a sack full of malt cans, a bottle capper, an ice box and the like; that they found three girls and a boy and defendant in the garage; that two of the girls were each drinking a bottle of beer; that defendant wanted to know if he wasn’t allowed to have.beer; that the other people in the garage said they didn’t
think it was against the law to drink beer; that defendant said he brought the girls from Muscatine, was going to a dance; thought they would stop and get a bottle of beer before they went over; that a man came in the garage after they were there and then walked out and threw a bottle in the weeds; that the two kegs of wine were found in the cellar of the house; that they examined the contents of the kegs and bottles and that such contents were intoxicating liquor, beer and wine and could be used for beverage purposes. Defendant and wife testified in substance that defendant before the middle of the summer of 1928 had been running an oil station in which he sold near beer, pop, cigars, candy and stuff like that; that he bought empty cases and got a rebate on them; that when the sheriff .was there he had bottled goods made from what was in that malt can. “I made it and bottled it the same day on May 16th. In making it take warm water and dissolve the malt, put my yeast in' it and bottle it up. That is all there is to it. There is no fermentation or anything of that kind. ’ ’ They testified that the jug was in the cellar with two kegs in which there were juices left over from canning cooked fruit, mostly blackberry, some grape and rhubarb; that the wife had been troubled with appendicitis during attacks of which she could not eat solid food; that the principal diet the’ Doctor advised her to take was grape juice and she would drink these juices and some of the malt preparation. This for the purpose of the case sufficiently shows the trend of the evidence.
We do not consider errors assigned but not argued.
I. Defendant contends that the indictment merely charges that the maintenance of the building was with intent to sell, etc. Not “that there was anything kept in said garage but merely an intent to do something,” and that the testimony of the officers should not therefore have been admitted, citing State v. Tierney, 74 Iowa 237, 238; State v. Elmers, 198 Iowa 1041. Without passing upon the sufficiency of the indictment if it had been properly attacked (see State v. Bruns, 211 Iowa 826), it is enough to say that the sufficiency of the specifications in the indictment was not raised before the jury was sworn and was not open to question on objections to evidence, exceptions to instructions or motion in arrest. 43 G. A., Chapter 270; State v. Porter, 206 Iowa 1247, 1249; State v. Costello, 200 Iowa 313.
II. Defendant urges that there is no competent evidence
to support the indictment for the reason that the undisputed evidence shows that the so-called intoxicating liquors seized in the cellar were cooked fruit juices placed there by the wife and used by her; that there is no evidence contradicting her testimony as to the manner in which the juices were prepared and placed in the kegs; that the malt preparation was made by defendant that morning and there was no fermentation. Chemical analysis was not made. The sheriff testified that at the time of the seizure he examined the contents of the containers; that he had possession of the property all the time; that the bottles contained intoxicating liquor, beer and wine; that the property had not been changed in any way since it came into his hands. The deputy sheriff testified that he also at the same time examined such contents and that it was wine, beer, and intoxicating liquor. These witnesses qualified themselves to testify. Their testimony was admissible. State v. Eggleston, 201 Iowa 1; State v. Parenti, 200 Iowa 333; State v. Bourgeois, 210 Iowa 1129. The case was for the jury.
III. Defendant argues that the testimony should have been excluded because there had been no adjudication under the search warrant. The point is not well taken. State v. Bourgeois, 210 Iowa 1129.
IV. Defendant also argues here that some of the instructions were erroneous. No exceptions were taken to them and whether or not they are correct is not before us for consideration. State v. Dunham, 206 Iowa 354.
V. Among other grounds assigned for new trial defendant asserted error in admitting as exhibits the malt syrup and the fruit juices seized by the sheriff “and permitting the same to go to the juryroom to aid the jury in determining at this time whether or not the same contained any alcoholic content, leaving it to the jury to speculate, there being no competent evidence in behalf of the plaintiff showing that the contents at the time the same were admitted in evidence and passed upon by the jury was in the same condition as the date of seizure, all as shown by the official shorthand reporter’s notes;” that “the court erred in permitting said exhibits to go to the jury-room for said purpose, and the drinking of the contents thereof by the. jury was wholly prejudicial to this defendant, and that said jury disregarding the evidence in said.case, based its verdict
upon the present content of said exhibits submitted to them for the purposes herein set forth.” This motion was supported by defendant’s affidavit to the effect that after the jury had left their room and the exhibits had been removed he went to the room and found on the floor 11 caps that had been removed from the bottles ‘ ‘ and learned that the jury had used at least 11 bottles of the malt syrup preparation that had been prepared by me and bottled on the 16th day of May, 1929. How many more bottles had been opened and used by the jury I was unable to learn as the exhibits had been taken from the jury room. * * *” Defendant says in his affidavit that he heard the argument of the-county attorney in which he told the jury that they had a right to test the samples and drink of them, and that from the evidence after the jury had left the room it showed conclusively that the jury had followed the instructions of the county attorney and had consumed the contents of quite a number of the bottles that had been submitted to them as exhibits in said case; “that I have now in my possession which I retained, the 11 caps picked up from the floor; that I also learned that several of the bottles had been recapped by the sheriff and bailiff, how many in excess of the 11 bottles used I did not learn.” It is obvious that the defendant’s affidavit as to what occurred in the jury room consists merely of conclusions and hearsay.
The alleged statement of the county attorney in argument and objection to it cannot be shown or raised in this manner. Crandall v. Mason, 198 Iowa 139.
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Morling, J.
The indictment charges that defendant on or about the 16th day of May, 1929, did maintain a private garage for the purpose of keeping therein intoxicating liquor with intent to sell, give away or dispose of the same contrary to law. •The sheriff and deputy sheriff testify, in substance, that in the evening of May 16, 1929, under search warrant, they searched defendant’s premises, found about
4y2
cases of beer, two kegs and a jug of wine, a number of cases of bottles empty or partially so, a sack full of malt cans, a bottle capper, an ice box and the like; that they found three girls and a boy and defendant in the garage; that two of the girls were each drinking a bottle of beer; that defendant wanted to know if he wasn’t allowed to have.beer; that the other people in the garage said they didn’t
think it was against the law to drink beer; that defendant said he brought the girls from Muscatine, was going to a dance; thought they would stop and get a bottle of beer before they went over; that a man came in the garage after they were there and then walked out and threw a bottle in the weeds; that the two kegs of wine were found in the cellar of the house; that they examined the contents of the kegs and bottles and that such contents were intoxicating liquor, beer and wine and could be used for beverage purposes. Defendant and wife testified in substance that defendant before the middle of the summer of 1928 had been running an oil station in which he sold near beer, pop, cigars, candy and stuff like that; that he bought empty cases and got a rebate on them; that when the sheriff .was there he had bottled goods made from what was in that malt can. “I made it and bottled it the same day on May 16th. In making it take warm water and dissolve the malt, put my yeast in' it and bottle it up. That is all there is to it. There is no fermentation or anything of that kind. ’ ’ They testified that the jug was in the cellar with two kegs in which there were juices left over from canning cooked fruit, mostly blackberry, some grape and rhubarb; that the wife had been troubled with appendicitis during attacks of which she could not eat solid food; that the principal diet the’ Doctor advised her to take was grape juice and she would drink these juices and some of the malt preparation. This for the purpose of the case sufficiently shows the trend of the evidence.
We do not consider errors assigned but not argued.
I. Defendant contends that the indictment merely charges that the maintenance of the building was with intent to sell, etc. Not “that there was anything kept in said garage but merely an intent to do something,” and that the testimony of the officers should not therefore have been admitted, citing State v. Tierney, 74 Iowa 237, 238; State v. Elmers, 198 Iowa 1041. Without passing upon the sufficiency of the indictment if it had been properly attacked (see State v. Bruns, 211 Iowa 826), it is enough to say that the sufficiency of the specifications in the indictment was not raised before the jury was sworn and was not open to question on objections to evidence, exceptions to instructions or motion in arrest. 43 G. A., Chapter 270; State v. Porter, 206 Iowa 1247, 1249; State v. Costello, 200 Iowa 313.
II. Defendant urges that there is no competent evidence
to support the indictment for the reason that the undisputed evidence shows that the so-called intoxicating liquors seized in the cellar were cooked fruit juices placed there by the wife and used by her; that there is no evidence contradicting her testimony as to the manner in which the juices were prepared and placed in the kegs; that the malt preparation was made by defendant that morning and there was no fermentation. Chemical analysis was not made. The sheriff testified that at the time of the seizure he examined the contents of the containers; that he had possession of the property all the time; that the bottles contained intoxicating liquor, beer and wine; that the property had not been changed in any way since it came into his hands. The deputy sheriff testified that he also at the same time examined such contents and that it was wine, beer, and intoxicating liquor. These witnesses qualified themselves to testify. Their testimony was admissible. State v. Eggleston, 201 Iowa 1; State v. Parenti, 200 Iowa 333; State v. Bourgeois, 210 Iowa 1129. The case was for the jury.
III. Defendant argues that the testimony should have been excluded because there had been no adjudication under the search warrant. The point is not well taken. State v. Bourgeois, 210 Iowa 1129.
IV. Defendant also argues here that some of the instructions were erroneous. No exceptions were taken to them and whether or not they are correct is not before us for consideration. State v. Dunham, 206 Iowa 354.
V. Among other grounds assigned for new trial defendant asserted error in admitting as exhibits the malt syrup and the fruit juices seized by the sheriff “and permitting the same to go to the juryroom to aid the jury in determining at this time whether or not the same contained any alcoholic content, leaving it to the jury to speculate, there being no competent evidence in behalf of the plaintiff showing that the contents at the time the same were admitted in evidence and passed upon by the jury was in the same condition as the date of seizure, all as shown by the official shorthand reporter’s notes;” that “the court erred in permitting said exhibits to go to the jury-room for said purpose, and the drinking of the contents thereof by the. jury was wholly prejudicial to this defendant, and that said jury disregarding the evidence in said.case, based its verdict
upon the present content of said exhibits submitted to them for the purposes herein set forth.” This motion was supported by defendant’s affidavit to the effect that after the jury had left their room and the exhibits had been removed he went to the room and found on the floor 11 caps that had been removed from the bottles ‘ ‘ and learned that the jury had used at least 11 bottles of the malt syrup preparation that had been prepared by me and bottled on the 16th day of May, 1929. How many more bottles had been opened and used by the jury I was unable to learn as the exhibits had been taken from the jury room. * * *” Defendant says in his affidavit that he heard the argument of the-county attorney in which he told the jury that they had a right to test the samples and drink of them, and that from the evidence after the jury had left the room it showed conclusively that the jury had followed the instructions of the county attorney and had consumed the contents of quite a number of the bottles that had been submitted to them as exhibits in said case; “that I have now in my possession which I retained, the 11 caps picked up from the floor; that I also learned that several of the bottles had been recapped by the sheriff and bailiff, how many in excess of the 11 bottles used I did not learn.” It is obvious that the defendant’s affidavit as to what occurred in the jury room consists merely of conclusions and hearsay.
The alleged statement of the county attorney in argument and objection to it cannot be shown or raised in this manner. Crandall v. Mason, 198 Iowa 139.
In resistance members of the jury made affidavits to the effect that the jury first read the instructions, then discussed them, then examined the exhibits; that several jurors tasted the wine from the kegs and large bottle; that they then took a ballot which resulted in a verdict of guilty; that no other ballot was taken. They then opened several bottles of the beer and it foamed out considerably; that the jurors only tasted the wine, not much beer was drunk. The deputy sheriff, who assisted in the search, made affidavit that he went to the juryroom to assist in taking out the exhibits, saw two open bottles of beer on sides “and most of the beer had ran out on the floor, and I also saw four other bottles of beer with the caps off and about an ounce of beer had been taken out of each bottle. There was not over 10 ounces of beer missing from all the bottles which had been opened by the jury. ’ ’
This ground of the motion for new trial raised two questions— 1. Whether it was error for the jury after retiring to taste the wine in the seized containers. 2. Whether there was misconduct of the jury in drinking intoxicating liquor. The sheriff testified, “The property had not been changed in any way since it came into my hands. I have examined the contents of these exhibits here before the court and jury. I examined them the night they were seized; ” that it looked the same.
With respect to the admissibility in evidence of the exhibits containing the malt syrup and the fruit juices it is sufficient to say that the evidence in behalf of the State tends to show that there had been no change in the condition of the liquor between the time of seizure and the time of trial. That a change had occurred would be a matter of inference. Whether such inference should be drawn was for the court and not the jury to decide. The court did not err in admitting the exhibits..
With respect to sending them out with the jury we find no objection thereto prior to the motion for a new trial.
It is a settled rule of this State that the mere smelling and tasting of the liquor in controversy by the jury is not prejudicial. State v. Elmers, 198 Iowa 1041; State v. Reilly, 108 Iowa 735; State v. Ling, 198 Iowa 598.
Cases from other jurisdictions hold that the discretion of the court is best exercised by requiring such tests to be made in the presence of the court and in the course of the trial. We think this would be the preferable practice, but the whole matter rests in the sound discretion of the court. No prejudice resulting from the tasting of the wine is shown.
The affidavits tend to show that the jurors drank some of the beer. The extent to which the beer was taken or consumed and the effect of the alleged drinking were matters of fact for the trial court to determine. The motion for a new trial based upon this alleged misconduct raised a question of fact for the trial court to determine and was addressed to his sound discretion. His determination was within the range of the evidence and no abuse of discretion appears. State v. Reilly, 108 Iowa 735.
We find no prejudicial error. — Affirmed.
Faville, C. J., and Evans, Stevens, De Graee and Kindig, JJ., concur.
Grimm, Albert and Wagner, JJ., dissent.