State v. Schmidt

80 P. 948, 71 Kan. 862, 1905 Kan. LEXIS 270

Opinion

Per Curiam:

The first point of error assigned is that the court below erred in admitting in evidence certain bottles of whisky and beer seized from the possession of appellants by an officer without a warrant. There was no error in this. The question was decided against appellants in The State v. Miller, 63 Kan. 62, 64 Pac. 1033.

It is next contended that a new trial should have been granted because some members of the jury smelled of the liquor. The record nowhere shows this, except in the testimony of a witness introduced in support of a motion for a new trial. If the jury smelled the contents of the bottles on the trial the appellants should have objected to it, for, if done, it was in their presence. When the bottles and labels were introduced in evidence the county attorney stated: “I will say, gentlemen, don’t any of you taste it, because it is n’t proper.” The liquor seems to have been introduced for the purpose of showing the labels on the bottles.

We find no prejudicial error in the case. The judgment is affirmed.