Baker v. State
| Decision Date | 22 March 1933 |
| Docket Number | No. 15799.,15799. |
| Citation | 58 S.W.2d 534 |
| Parties | BAKER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Gregg County; Reuben A. Hall, Judge.
O. P. Baker was convicted of possessing a narcotic drug, and he appeals.
Reversed, and prosecution dismissed.
R. E. Dickson, of Longview, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Possessing a narcotic drug is the offense; penalty assessed at confinement in the penitentiary for a period of five years.
In the indictment it is charged that "in the county and state aforesaid, O. P. Baker did, then and there unlawfully possess a narcotic drug against the peace and dignity of the State."
In chapter 3, beginning with article 720 and concluding with article 726, P. C. 1925, the traffic in certain narcotic and poisonous drugs is under certain circumstances prohibited. In chapter 97, Acts 42d Leg. (1931) Regular Session, p. 154 (Vernon's Ann. P. C. art. 725a, § 1 (a, b), there is another statute upon the subject, which reads in part as follows:
In the same section the penalty is prescribed, which includes a fine and confinement in the penitentiary for more than five years. The subsequent sections of the bill name the exceptions to the inhibition contained in section 1, also enumerate other means of violation of the statute.
"Marihuana (marijuana)," pronounced "merry-huana," and called "griefo" or "merry" by addicts that use it, is a product of Mexican hemp. It contains a volatile drug. It is most often taken in the form of a smoke, and sometimes mixed with tobacco. It produces a high exhilaration, and when taken in excess, it motivates brutal criminality.
We have no authentic information touching the drug last mentioned above. No reference to it either in the dictionary or the encyclopedia has been discovered. The foregoing is from a statement in a magazine and the accuracy of the statement is not vouched for by the members of the court.
"Opium" is the product of a species of the poppy plant which is grown in India, Turkey, Persia, and Egypt. The juice or sap of the plant is taken before it is ripe and dried. Good opium is a hard, compact solid of reddish-brown color. The sale of opium is prohibited in many countries besides the United States. See New International Encyclopedia, vol. 17, p. 490.
"Morphine" is an alkaloid of opium. Opium contains at least 9 per cent. of morphine. Morphine is regarded as one of the most useful of all drugs for the reason that when applied hypodermically it is unequaled as a pain-relieving drug. Morphine is not soluble in water. See Encyclopedia Britannica (14th Edition) vol. 15, p. 820.
"Heroin" is a derivative of morphine and resembles that drug. It is supposed to have a special depressing effect upon the spinal cord. It is a white crystal, soluble in water. Heroin is used in cough remedies. See Ency. Britannica, vol. 11, p. 515.
"Cocoa" is a South American shrub. Its dry leaves are a powerful nerve stimulant.
"Cocaine" is a crystalline alkaloid obtained from cocoa leaves and is used as a local anæsthetic. In large doses cocaine produces intoxicating effects similar to those of the Indian hemp. See Webster's New International Dictionary, p. 426.
While each of these substances are classed as "narcotic drugs," it is apparently manifest that an indictment in which the offense is described as unlawfully possessing a narcotic, in order to comply with the Constitution, should name the substance that is intended. In the absence of such an averment, one charged, as in the present case, with the possession of a "narcotic," would be without information in the...
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