Owen

Defendant was convicted of the offense of driving an automobile upon a public highway at a time when he 'was under the influence of intoxicating liquor. He appeals from the judgment and from an order denying his motion for a new trial.

On the trial of the action no one testified to having seen defendant take a drink of intoxicating liquor or to have observed the smell of such liquor on his breath at or near the time when the alleged offense was committed; but the evidence upon which the prosecution relied for a conviction consisted of testimony relating to the peculiar conduct of and statements made by defendant at or near the time in question.

Evidence offered on behalf of defendant in explanation of such conduct and statements was denied admission by the trial court, and prejudicial error is predicated thereon.

From the record it appears that at the outset of the defense the rejected evidence was offered for the purpose, not of proving the insanity of defendant from the standpoint of his not knowing or appreciating right from wrong, but solely with the view of presenting to the jury evidence of the customary habits and eccentricities of the defendant at a time or times when…