
    [No. 18759.
    Department Two.
    December 9, 1924.]
    The State of Washington, Respondent, v. Oscar Forsyth, Appellant. 
      
    
    Criminal Law (148) — Evidence op Non-Experts. In a prosecution for driving an automobile while intoxicated, non-expert witnesses who observed accused’s conduct and condition may give their opinion as to whether he was intoxicated.
    Same (155-1) — Evidence—Opinion Evidence — Bodily Condition. In a prosecution for driving an automobile while intoxicated it is proper to allow a witness to testify to the condition, after death, of the body of one of the passengers, hilled in the accident, where it had a direct bearing on the conduct and question of intoxication of the accused.
    Appeal from a judgment- of the superior court for Clarke county, Simpson, J., entered January 25, 1924, upon a trial and conviction of driving an automobile while intoxicated.
    Affirmed.
    
      Crass & Hardin and Richards & Richards, for appellant.
    
      Joseph E. Hall and Dale McMullen, for respondent.
    
      
       Reported in 230 Pac. 821.
    
   Mackintosh, J.

The appellant was convicted of driving an automobile while he was intoxicated, against the provisions of § 2527, Bern. Comp. Stat. [P. C. §9090], and complains because non-expert witnesses wbo had observed bis conduct and condition at tbe time and place that tbe automobile wbicb be was driving collided with a truck, and wbo testified to such conditions and conduct, were allowed to express tbeir opinion that be was intoxicated. There is no question that tbe witnesses were entitled to give tbeir opinion after having detailed what came under tbeir observation. Tbe weight of tbe testimony is a question for tbe jury to pass on, and it has a right.to take into consideration tbe opportunity tbe witnesses bad for observing tbe condition wbicb led them to believe that intoxication existed. In State v. Dolan, 17 Wash. 499, 50 Pac. 472, we said:

“~We are also of tbe opinion that tbe court erred in not permitting the witness Phelps to answer tbe question whether Dolan appeared to be so intoxicated that be did not know what be was doing. It was not a question upon wbicb only an expert could express an opinion. Tbe witness having seen, noted and stated the condition, appearance and actions of Dolan, bad sufficiently shown bis qualification to testify as to tbe extent of bis intoxication. Such testimony is received in proof of insanity, and we see no valid reason why tbe question propounded should not have been answered. See 1 Wharton, Evidence, § 512, and notes.”

Tbe same rule has been applied by this court in similar situations; State v. Brooks, 4 Wash. 328, 30 Pac. 147; State v. Craig, 52 Wash. 66, 100 Pac. 167; State v. George, 58 Wash. 681, 109 Pac. 114; Rust v. Washington Tool & Hardware Co., 101 Wash. 552, 172 Pac. 846.

It is next complained that error was committed in allowing a witness to testify as to tbe condition, after death, of one of tbe passengers in appellant’s car wbo was killed in tbe accident. An examination of tbe testimony shows that it was admitted for tbe purpose of showing the actions of the appellant in taking hold of the dead body and shaking it and speaking to it; all of which indicated the possibility of appellant’s intoxicated state; for a sober man would have recognized, from the presence of blood on the face and other evidences, that it was the body of a dead man.

These are the only assignments of error occurring at the trial, and we find no reason in either of them to disturb the verdict.

Subsequently to the trial, it is urged, the court erred in ordering the appellant to perfect his appeal to this court. If the trial court was incorrect in this regard, it is a matter of which the appellant could have taken advantage by resorting to appropriate remedies. It is a matter which has nothing whatever to do with the question whether appellant received a fair trial. If the action of the trial court in this respect was unwarranted, there is no relief for it at this time.

The judgment is affirmed.

Main, O. J., Holcomb, Fitllertok, and Mitchell, JJ., concur.  