
    No. 623
    WEREB v. STATE
    Ohio Appeals, 6th Dist., Ottawa Co.
    No. 95.
    Decided June 14, 1926
    480. EVIDENCE — Evidence of odor of certain liquid establishing it as being whisky, is not incompetent for the reason that it is based upon the sense of smell only.
    Attorneys — Charles W. Meek, Toledo, for Wereb; Don Bell, Pros. Atty., Port Clinton, for State.
   YOUNG, J.

Steve Wereb was found guilty of unlawfully having whisky in his possession, and upon conviction was fined $1000 by the mayor of the village of Genoa. The sentence was affirmed by the Ottawa Common Pleas.

Several constables it seems went to Wereb’s place of business with a search warrant for the purpose of searching the place for liquor. In the tussle which followed, Wereb smashed a bottle concealed on his person which contained whisky, the liquid saturating Wereb’s trousers. The witnesses testified ¡that the odor of the liquid was that of whisky, as was the contents of the bottle.

Upon error being prosecuted, Wereb contends that the testimony offered by the constables was incompetent because their knowledge was obtained by the sense of smell; that the witnesses were not qualified and that the conviction was not warranted. The Court of Appeals held:

1. Those who have observed things through the sense of seeing and who are not otherwise incapacitated, are competent witnesses.
2. This rule is true of the other senses, tasting, hearing, and feeling, so it would be applicable to the sense of smell unless one’s sense of smell were so impaired as to make it impossible to distinguish one odor from another.
3. The witnesses were qualified and competent to testify, and the judgment not being manifestly against the weight of the evidence is affirmed.

Judgment affirmed.  