Opinion
No. 4964.
May 18, 1927.
APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.
Defendant appeals from judgment of conviction of the unlawful possession of intoxicating liquor. Affirmed.
Donald R. Good and Thomas Andersen, for Appellant.
The appellate court cannot and will not shift the responsibility to the jury, but will examine the evidence to ascertain whether or not the verdict is supported by the evidence. ( State v. Nesbit, 4 Idaho 548, 43 P. 66; State v. Jones, 25 Idaho 587, 138 P. 1116; State v. Trego, 25 Idaho 625, 138 P. 1124.)
Opinion evidence as to intoxicating nature or kind without chemical analysis of the suspected liquor is insufficient as a basis for a conviction ( Berry v. United States, 275 Fed. 680; Alexander v. State (Okl.), 248 P. 873.)
Frank L. Stephan, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.
Where there is a conflict in the evidence but sufficient competent evidence to support the verdict and judgment based thereon, the same will not be disturbed on appeal. ( State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Shepard, 39 Idaho 666, 229 P. 87; State v. White, 33 Idaho 697, 197 P. 824.)
The character of liquor may be shown by its smell or taste. ( People v. Savage, 225 Mich. 84, 195 N.W. 669; People v. Mueller, 168 Cal. 526, 143 P. 750.)
A chemical analysis of liquor is unnecessary as the possession of spirituous beverages is unlawful whether or not they are intoxicating. ( In re Lockman, 18 Idaho 465, 110 Pac. 253, 46 L.R.A., N.S., 759.)
Defendant appeals from a judgment of conviction of the unlawful possession of intoxicating liquor, and from an order denying a new trial.
We have thoroughly examined the record, and reach the conclusion that there is substantial evidence to support the verdict, and there appears no error affecting a substantial right of the appellant.
The judgment is affirmed.
Budge, Givens and T. Bailey Lee, JJ., concur.