concurrence"> WOLFE, Justice

(concurring in the result).

I cannot agree that the challenge against the venireman for cause, should have been allowed as a matter of law in *433 this case. He stated honestly and reasonably to the effect that if the drinking was related in any way to the accident he would be prejudiced. It is plain that he meant “influenced,” and well he might be, for it would be a disingenuous and unworthy juror who would not be affected or influenced by the proof of the fact that drinking played its part in the accident. He stated that notwithstanding that the driver had taken drinks, that would not prejudice him in the real question as to whether he had been guilty of driving in violation of law. In view of Sec. 105-31-21, R. S. U. 1933, the court did not abuse its direction in concluding that the venireman would act with entire impartiality. Frankness in giving vent to anything from which the state of mind of the venireman can be inferred, should be encouraged and not discouraged. The intelligent, responsive venireman will, on questioning, try to appraise his state of mind dispassionately and then attempt to convey an honest revelation of it. If it appears that he is honest and that he has the mental reactions which are normal to the questions, further inquiry should be made to determine whether such mental state is one precluding impartiality, and if it appear that he is capable of arriving at an impartial and fair verdict despite his opinions regarding the actions of the defendant as related to the controversy, he should not be excused for cause. This was a case where the court’s discretion was particularly apropos. Cases cited by the appellant where the review court held that the court properly excused a juror for cause, exemplified by State v. Huffman, 89 Mont. 194, 296 P. 789, are illustrative of this.

I think there is sufficient evidence to go to the jury as to the condition of the driver at the time of the accident. There was evidence of the drunken condition of the driver three hours after the accident, plus evidence that he had been drinking during the journey. From such evidence it might reasonably be inferred that his driving off the road was due to his condition and to the fact that the drinking impaired his ability to operate the truck in an ordinarily *434 careful manner. Where the testimony is that two bottles of hard liquor were bought en route and at least one bottle consumed, in which consumption the driver shared in generous quantity at a time not too remote before the accident, plus evidence that he had partaken of beer, together with a controversion of the only assigned reason given by the driver for his driving off the road, we have sufficient evidence from which it can be inferred that the driving off the road was due to lack of control caused by intoxication. Public policy in regard to drinking while charged with the highly responsible duty of operating a car, or of operating a car while under the telling influence of liquor, demands that the courts do not become too strict in the requirements of direct evidence to prove that a condition of impairment of. powers existed which was itself the cause of the accident. There was enough here to make a prima facie case. The whole picture presented is one of a driver who had picked up young boys and then with his companion in the front seat exhibited a marked disregard for the responsibilities which he assumed, by drinking capriciously while driving.

I think the bottle was properly admitted in evidence. The evidence was that two bottles of whiskey of the same size and brand were purchased that day; that a witness immediately after the accident saw on the ground a bottle of that size and of that brand; three days later a deputy sheriff picked up a bottle of the same size and brand at the point where the witness had seen it. There was sufficient connection between these events in respect to the bottle testified to by the witnesses, to make the bottle admissible. Evidence is in the last analysis, a matter of relative probabilities. While there appears to be little added to the evidence of the bottle by introducing the bottle itself, it is corroborative, and the probability that the bottle found near the scene of the accident was the bottle in the hands of the driver and his companion in the cab of the truck, is established with sufficient probability to make it admissible in evidence.

*435 The more bothersome assignments of error relate to the instructions as to speed. As stated by the opinion, the speed of 35 or 40 miles per hour taken by itself, at the particular point where the accident occurred, might not be negligence. An examination of the information, however, shows that the manslaughter was charged, in the general terms as follows: “that Chealey did unlawfully and without malice kill,” etc. There was no bill' of particulars. This opened up to the prosecution any act of unlawfulness done without malice, which resulted in the death. The evidence as to unlawfullness on the part of the state was as to the drinking, the lack of any obstruction on the highway and cl^ar view for a mile and a half. No evidence was introduced by the prosecution regarding speed. Certainly whére a driver has been drinking, a speed of 35 or 40 miles per hour may be unreasonable. The effect of the liquor may be such' that travel at any rate may be unlawful. The case should have been put to the jury on the question of the proper, control of the car. Speed might enter as an element in this determination. However, the instructions as to speed were prejudicial in that the jury could reasonably have inferred that there Was involved in the case a question as to whéther a speed of 35 or 40 miles per hour, under the circumstances, by itself constituted negligence. This is not a case in which speed is charged as negligence or even as a basis to show lack of control. Speed was introduced inci-dently by the defense to show generally that the defendant was driving carefully. Under these circumstances it should not have been singled out by the court and be made the basis of an instruction on the theory that it was unlawful conduct charged and proved. The jury was permitted to determine whether the speed so testified to was greater than reasonable and prudent under the circumstances on the theory that it was one of the separate bases of negligence.

This is not the case of White v. Pinney, 99 Utah 484, 108 P. 2d 249, where the instruction, not based on any evidence, *436 was one which could not possibly have deluded the jury into thinking that there was evidence in regard to the matter to which the instruction referred.

I must, therefore, concur in the reversal.

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