Carrizal v. State, 20568.

• Decision Date: 08 November 1939
• Docket Number: No. 20568.,20568.
• Citation: 134 S.W.2d 287
• Parties: CARRIZAL v. STATE.
• Court: Texas Court of Criminal Appeals

134 S.W.2d 287

CARRIZAL v. STATE.

No. 20568.

Court of Criminal Appeals of Texas.

November 8, 1939.

Rehearing Denied December 20, 1939.

Commissioners' Decision.

Appeal from Criminal District Court, Bexar County; W. W. McCrory, Judge.

L. Carrizal was convicted of unlawful possession of marihuana, and he appeals.

Affirmed.

Floyd D. James, of San Antonio, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is unlawful possession of marihuana. The punishment assessed is confinement in the state penitentiary for a term of two years.

The record shows that two deputy sheriffs, accompanied by a Mexican man, went to appellant's home with what purported to be a search warrant, to search his premises for marihuana. When they arrived, appellant was absent but his wife and children were there. The officers informed her of their mission and read the search warrant to her, whereupon she said: "Go ahead and search." A few minutes later appellant appeared and the officers advised him of their purpose and read the warrant to him and he told them to go ahead and search; that he did not have any marihuana—only some herbs. The search revealed a quantity of marihuana stored in a can. Appellant testified that he had been in Wisconsin and had gathered some herbs there to bring to his sick father to be used for medicinal purposes. That he did not know the herbs were marihuana.

Upon the trial, the court upon objection of appellant's attorney, held the search warrant insufficient, but admitted all of the evidence discovered as a result of the search on the theory that the officers had permission to make the search. No objection to the admission of such evidence seems to have been interposed, as there is no exception in the record complaining of its admission. If a proper and timely objection had been made to the admission of such testimony and the same had been brought here for review by a proper bill of exception, a most serious question would have been presented. See Balch v. State, 134 Tex.Cr.R. 327, 115 S. W.2d 676, and authorities there cited. But in the absence of any objection, the matter is not properly before this court for review. See Fisher v. State, 108 Tex.Cr.R. 332, 1 S.W.2d 301. Moreover, it will be noted that appellant took the witness stand and testified that he told the officers he had the herbs in a can and they went and got it. Consequently he got before the jury the fact that he possessed the herb which proved to be marihuana. Hence the same testimony as that offered by the officers as a result of the illegal search was offered by appellant, and he has no just grounds for complaint. See McLaughlin v. State, Tex.Cr.App., 4 S.W.2d 54; Machado v. State, 112 Tex.Cr.R. 538, 17 S.W.2d 1060; Flower v. State, 113 Tex.Cr.R. 69, 18 S. W.2d 659; Stone v. State, 113 Tex.Cr.R. 371, 22 S.W.2d 140; Reusch v. State, 119 Tex.Cr.R. 112, 45 S.W.2d 209; Schaefer v. State, 121 Tex.Cr.R. 220, 53 S.W.2d 302; Moss v. State, 121 Tex.Cr.R. 614, 50 S.W. 2d 835; Hinton v. State, 122 Tex.Cr.R. 438, 55 S.W.2d 837.

The only bill of exception appearing in the record relates to the action of the court in overruling appellant's second motion for a continuance. The application is insufficient in that it fails to set out what fact or facts appellant expected to prove by said witness or that said testimony could not be procured from any other source. Moreover, it appears from the statement of facts that the allegedly absent witness did appear and testify. Consequently no error is shown.

No other matters appearing for review, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Appellant's Motion for Rehearing.

CHRISTIAN, Judge.

Appellant contends that the evidence is insufficient to show that the substance he possessed was marihuana. An experienced chemist testified upon the trial, in part, as follows: "We took the substance of that sack and made the investigation and test for marihuana. There are several tests recognized for that purpose and we made them all. They are used by the Government Narcotic Bureau. One of those is the microscopic test when some of the material is placed under a high power microscope, and then there...