State v. Wheeler

GIVENS, and TAYLOR, Justices

(concurring, and in part, dissenting).

We dissent from that part of the opinion holding it was prejudicial error to admit in evidence State’s exhibits A, being a part of bottle of whiskey; B and C being bottles of beer; D being beer bottle caps and opener; as they were in connection with the testimony of witness McCall, an Idaho State Police Officer, who arrived at and investigated the accident immediately, after its occurrence. He testified that he observed the defendant carefully at that time, smelled alcohol on defendant’s breath and was of the opinion the defendant was then influenced by intoxicating liquor. State v. Alvord, 46 Idaho 765 at page 770, 271 P. 322; State v. Parris, 55 Idaho 506 at page 508-509, 44 P.2d 1118, 170 A.L.R. 307; People v. Pahner, 10 Cal.App.2d 294, 51 P.2d 1143; People v. Warner, 27 Cal.App.2d 190, 80 P.2d 737; State v. Busby, 102 Utah 416, 131 P.2d 510, 144 A.L.R. 1468; Hall v. State, Okl.Cr.App., 159 P.2d 283 at page 286. Otherwise, we concur.