State v. Hansen, 7352
Decision Date | 20 May 1947 |
Docket Number | 7352 |
Citation | 67 Idaho 359,181 P.2d 192 |
Parties | STATE v. HANSEN |
Court | Idaho Supreme Court |
Appeal from District Court, Sixth Judicial District, Bingham County D. H. Sutphen, Presiding Judge.
Judgment affirmed.
John R Black, of Pocatello, for appellant.
The evidence is insufficient to support the judgment of conviction entered in this cause against the appellant and in favor of the State of Idaho, Session Laws 1939, Chapter 222, Section 902; State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A.L.R. 902; State v. Vanek, 59 Idaho 514, 84 P.2d 567; State v. Haynes, 64 Idaho 627, 135 P.2d 300; State v. Wilson, 62 Idaho 282, 111 P.2d 868; State v. Henry, 66 Idaho 60, 154 P.2d 184; State v. Robinson, 158 Kan. 287, 147 P.2d 374; People v. Rende, Co.Ct., 33 N.Y.S.2d 791.
In the absence of proof that the substance allegedly sold was alcoholic liquor, there can be no conviction of the appellant. Session Laws 1939, Chapter 222, Sections 106 and 902.
Robert Ailshie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent.
One who knows the taste and smell of whiskey is qualified to testify that what he bought and drank was whiskey. No other evidence is required to sustain a conviction. Lewinsohn v. U.S. 7 Cir., 278 F. 421, and authorities cited; certiorari denied, 258 U.S. 630, 42 S.Ct. 463, 62 L.Ed. 800.
Also, if one orders whiskey, a beverage is poured, delivered and paid for, it is presumed to have been whiskey. Idem., and authorities cited, p. 426; State v. McLaughlin, 42 Idaho 219, 245 P. 77.
See also: Atles v. U.S. 3 Cir., 50 F.2d 808, 78 A.L.R. 435, and note, 439, citing copious authority; State v. Eggleston, 201 Iowa 1, 206 N.W. 281; State v. Buck, 88 Kan. 114, 127 P. 631, 42 L.R.A.,N.S., 854, Ann.Cas.1914B, 730 (poison-odors compared).
Appellant, charged with the crime of unlawful sale of intoxicating liquor, second offense, was tried before the court and a jury. Verdict of guilty was returned and appellant was convicted and sentenced to be punished by imprisonment in the county jail for six months and pay a fine of $ 500; and if he "shall fail, neglect, or refuse to pay the fine heretofore imposed as hereinabove recited, that he be retained and imprisoned in the Bingham County jail for a period of time equivalent to one day for each two dollars representing the aggregate amount recited herein as fine imposed against the said defendant." From the judgment he has appealed.
N. C. Spellman, resident of Coeur d'Alene, and L. Harold Drayney, of Burley, went to Blackfoot September 11, 1946, as investigators for the state liquor law enforcement. Spellman had been engaged in law enforcement work for approximately eight years; Drayney had been employed "with law enforcement off and on for about seven years." Spellman's testimony, with reference to the investigation, was as follows:
Mr. Drayney's account of the investigation was similar to that of Spellman's; he said:
On the other hand, appellant Hansen testified substantially as follows: That he had lived about six years in Blackfoot and prior to that he had been county constable at Dubois.
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